ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "ASSIGNMENT")
is made and entered into as of the 25 day of October, 2001, by
and between NNN-CW, LP, a Delaware limited partnership
("ASSIGNOR"), and AEI REAL ESTATE FUND 85-A LIMITED PARTNERSHIP,
a Minnesota limited partnership, and AEI FUND MANAGEMENT XVII,
INC., a Minnesota corporation (collectively, "ASSIGNEE").
RECITALS:
A. Assignor and Assignee (as successor in interest to AEI
Fund Management, Inc., a Minnesota corporation) are parties to
that certain Purchase and Sale Agreement dated September 6, 2001,
as it may have been amended (the "AGREEMENT"), pursuant to which
Assignee is acquiring from Assignor the real property and
improvements, located on property more particularly described on
EXHIBIT A attached hereto and incorporated herein by this
reference.
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 and
rights and obligations under that certain Net Lease Agreement
dated September 27, 2000 (the "LEASE"), by and between Assignor
and ARAMARK EDUCATIONAL RESOURCES, INC., a Delaware corporation,
d/b/a Children's World Learning Centers (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 which are actually incurred, and
which arise by virtue of acts or omissions occurring thereunder,
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: NNN-CW, LP.
a Delaware Limited Partnership
By: TCC NNN Trading, Inc., a
Delaware corporation
Its: General Partner
By: /s/ Xxxxxxx X Xxxx
Xxxxxxx X. Xxxx, Vice President
ASSIGNEE: AEI REAL ESTATE FUND 85-A LIMITED
PARTNERSHIP
By: Net Lease Management 85-A, Inc.,
a Minnesota corporation
Its: General Partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
AEI FUND MANAGEMENT XVII, INC.,
a Minnesota corporation
By:/s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this
24th day of October, 2001, by Xxxxxxx X Xxxx, as Vice President
of TCC NNN Trading, Inc., a Delaware corporation, the general
partner of NNN-CW, LP, a Delaware Limited Partnership.
WITNESS my hand and official seal.
My commission expires: [notary stamp]
/s/ Xxxxx X Xxxx
Notary Public
(Jurats continue on the following page)
STATE OF MINNESOTA )
) ss.
CITY/ COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this
24th day of October, 2001, by Xxxxxx X. Xxxxxxx, as President of
Net Lease Management 85-A, Inc., as general partner of AEI REAL
ESTATE FUND 85-A LIMITED PARTNERSHIP.
WITNESS my hand and official seal.
My commission expires:
/s/ Xxxxxxx X Xxxxxxxxx
Notary Public [notary seal]
STATE OF MINNESOTA )
) ss.
CITY/ COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this
24th day of October, 2001, by Xxxxxx X. Xxxxxxx, as President of
Net Lease Management 85-A, Inc., as general partner of AEI REAL
ESTATE FUND 85-A LIMITED PARTNERSHIP.
WITNESS my hand and official seal.
My commission expires:
/s/ Xxxxxxx X Xxxxxxxxx
Notary Public [notary seal]
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE
DESCRIPTION OF PROPERTY
A certain parcel of land in West Bridgewater, Plymouth County,
Massachusetts, being located on the Northerly side of West Center
Street, and being identified as Xxx 0 xx Xxxx Xxxxx Xxxx 0000-X
filed with Plymouth Registry District of the Land Court to which
plan reference is made for a more particular description,
including the appurtenant easement over Lots 1 to 4 and 6 to 9,
shown on Land Court Plan 4709-B, as more particularly described
in the Declaration of Access Easement dated May 27, 1999, created
by Xxxxxx X. Xxxxx, Xx., Trustee of Xxxxxxx X. Xxxxx Family
Realty Trust filed as Document No. 449324 and shown on the
easement plan attached thereto.
