FIRST AMENDMENT TO NET LEASE AGREEMENT
THIS AMENDMENT TO NET LEASE AGREEMENT, made and entered
into effective as of the 23rd day of August, 2000, by and between
AEI Income & Growth Fund 23 LLC, ("Fund 23"), whose principal
business address is 1300 Minnesota World Trade Center, 30 East
Seventh Street, St. Paul, Minnesota 55101 (hereinafter
collectively referred to as "Lessor"), and Tumbleweed, Inc.
(hereinafter referred to as "Lessee"), whose principal business
address is 1900 Mellwood Avenue, Louisville, Kentucky;
WITNESSETH:
WHEREAS, Lessor is the fee owner of a certain parcel of real
property and improvements located at Kettering, Ohio, and legally
described in Exhibit "A", which is attached hereto and
incorporated herein by reference; and
WHEREAS, Lessee has constructed the building and
improvements (together the "Building") on the real property
described in Exhibit "A", which Building is described in the
plans and specifications heretofore submitted to Lessor; and
WHEREAS, Lessee and Lessor Fund 23 have entered into that
certain Net Lease Agreement dated February 25, 2000 (the
"Lease") providing for the lease of said real property and
Building (said real property and Building hereinafter referred to
as the "Leased Premises"), from Lessor upon the terms and
conditions therein provided in the Lease;
NOW, THEREFORE, in consideration of the Rents, terms,
covenants, conditions, and agreements hereinafter described to be
paid, kept, and performed by Lessee, including the completion of
the Building and other improvements constituting the Leased
Premises, Lessee and Lessor do hereby agree to amend the Lease as
follows:
1. Article 2(A) and (B) of the Lease shall henceforth read as
follows:
ARTICLE 2. TERM
(A) The term of this Lease ("Term") shall be Fifteen (15)
consecutive "Lease Years", as hereinafter defined, commencing
August 23, 2000, plus the period commencing February 25, 2000
("Occupancy Date") through the effective date hereof, with the
contemplated initial term hereof ending on August 31, 2015.
(B) The first full Lease Year shall commence on the date of
this First Amendment and continue through August 31, 2001.
2. Article 4(A) of the Lease shall henceforth read as follows:
ARTICLE 4. RENT PAYMENTS
(A) Annual Rent Payable for the first and second Lease
Years: Lessee shall pay to Lessor an annual Base
Rent of $120,821.10, which amount shall be payable
in advance on the first day of each month in equal
monthly installments of $10,068.43 to Fund 23. If
the first day of the Lease Term is not the first
day of a calendar month, then the monthly Rent
payable for that partial month shall be a prorated
portion of the equal monthly installment of Base
Rent.
3. Article 34 is hereby deleted in its entirety; Lessor and
Lessee agree that the referenced Development Financing Agreement
is terminated in accordance with its terms. All other terms and
conditions of the Lease shall remain in full force and effect.
4. Lessee has accepted delivery of the Leased Premises and has
entered into occupancy thereof;
5. Lessee has fully inspected the Premises and found the same
to be as required by the Lease, in good order and repair, and all
conditions under the Lease to be performed by the Lessor have
been satisfied;
6. As of this date, the Lessor is not in default under any of
the terms, conditions, provisions or agreements of the Lease and
the undersigned has no offsets, claims or defenses against the
Lessor with respect to the Lease.
7. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
1.
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed
and sealed this Lease as of the day and year first above written.
LESSEE: Tumbleweed, Inc.,
By: /s/ Gregory A Compton
Its: VP/Secretary & General Counsel
Witness
/s/ Sarah Snyder
Sarah Snyder
Print Name
Witness
/s/ Kathy Corum
Kathy Corum
Print Name
STATE OF KENTUCKY)
)SS.
COUNTY OF JEFFERSON)
The foregoing instrument was acknowledged before me this
10th day of August 2000 by Gregory A Compton, as Vice
President/Secretary and General Counsel of Tumbleweed, Inc., on
behalf of said corporation.
/s/ Lisa Hall
Notary Public commission expires f-27-2003
[seal]
LESSOR:
AEI INCOME & GROWTH FUND 23 LLC
By: AEI Fund Management XXI, Inc.
Witness
/s/ Michael B Daugherty By: /s/ Robert P Johnson
Michael B Daugherty Robert P. Johnson, President
Print Name
Witness
/s/ Ann M Feucht
Ann M Feucht
Print Name
STATE OF MINNESOTA )
)SS.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the 23rd
day of August 2000, by Robert P Johnson, the President of AEI
Fund Management XXI, Inc., a Minnesota corporation, corporate
general partner of AEI Income & Growth Fund 23 LLC, on behalf of
said limited partnership.
/s/ Barbara J Kochevar
Notary Public
[notary seal]
LEASE AMENDMENT, TUMBLEWEED, KETTERING, OHIO
Legal Description
Situate in the City of Kettering, County of Montgomery, State of
Ohio, and being Lot 1 Kettering Towne Center Section 1 as
recorded in Plat Book 177, Page 19 of the Plat Records of
Montgomery County, Ohio.
Together with non-exclusive rights of ingress and egress and
parking as set forth in Cross Easement Agreement by and between
Center-Plex Venture and AEI Income & Growth Fund 23 LLC dated
23 August, 2000.
Subject to all Easements, covenants, conditions, agreements and
restrictions of record.
