PURCHASE AGREEMENT
KONA RESTAURANT GROUP, INC.
Lake Charles, Louisiana
This Purchase Agreement (the "Agreement") entered into and
effective as of the 9th day of December, 2003, by and
between Kona Restaurant Group, Inc. (the "Seller") and AEI
Income & Growth Fund 25 LLC and AEI Private Net Lease
Millennium Fund Limited Partnership, or its assigns (the
"Buyer").
1. Property. Seller holds an undivided 100% interest in
the fee title to that certain real property legally
described in the attached Exhibit "A" (the "Parcel").
Seller wishes to sell and Buyer wishes to purchase the
Parcel and all improvements thereon upon which Seller has
developed a ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ Country Italian restaurant (the
"Improvements") on the Parcel (the Parcel and the
Improvements collectively, the "Property").
2. Lease. The Property is being sold subject to the
execution of a Lease on the Property by and between Buyer as
Lessor ("Lessor") and Seller as lessee (the "Lessee"), (the
"Lease").
The Lease is to be guaranteed by Fired-Up, Inc. (the
"Guarantor").
3. Closing Date. The closing date on the Buyer's purchase
of the Property shall be on or before December 3, 2003 (the
"Closing Date").
4. Purchase Price. The purchase price for the Property is
up to two million three hundred thousand ($2,300,000)
dollars and shall be equal to the Annual Basic Rental (as
defined in the Lease) for the first Rental Year (as defined
in the Lease) capitalized at nine and one-quarter (9.25%)
percent, (the "Purchase Price"). Beginning at the start of
the second (2nd) lease year and every lease year thereafter,
including any renewal terms, such annual rent will increase
by an amount equal to one (1.0%) of the prior year's
scheduled annual rent. The term of the Lease shall be for
seventeen (17) years, with three (3) five (5) year options
to renew. As a contingency to Buyer's obligations
hereunder, Seller shall supply Buyer with an MAI appraisal
of the Property. If all conditions precedent to Buyer's
obligations to purchase have been satisfied, Buyer shall
deposit the Purchase Price with a title company acceptable
to Buyer as described in Article 6 hereof (the "Closing
Agent") on or before the Closing Date.
Within 15 (15) business days of the Closing Date, Buyer will
deposit twenty- thousand one hundred ($20,100) dollars (the
"▇▇▇▇▇▇▇ Money") in an escrow account with the Closing
Agent. The ▇▇▇▇▇▇▇ Money will be credited against the
Purchase Price paid by Buyer at closing when and if the
transaction contemplated herein closes and the sale is
completed. One Hundred Dollars ($100.00) of such ▇▇▇▇▇▇▇
Money shall be considered Option Consideration and be
immediately non-refundable even if this Agreement is
terminated for any reason.
The balance of the Purchase Price of up to two million two
hundred seventy nine thousand nine hundred ($2,279,900)
dollars, is to be deposited by Buyer into an escrow account
with the Closing Agent on or before the Closing Date.
5. Escrow. Escrow shall be opened by Seller with the
Closing Agent upon execution of this Agreement. A copy of
this Agreement will be delivered to the Closing Agent by
Seller and will serve as escrow instructions together with
any additional instructions required by Seller and/or Buyer
or their respective counsels. Seller and Buyer agree to
cooperate with the Closing Agent and sign any additional
instructions reasonably required by the Closing Agent to
close escrow. If there is any conflict between any other
instructions and this Agreement, this Agreement shall
control.
6. Title. Seller shall deliver to Buyer a commitment for
an ALTA Owner's Policy of Title Insurance (ALTA owner-most
recent edition) issued by Chicago Title Company (the "Title
Company") ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, insuring marketable title in the
Property, subject only to such matters as Buyer may approve
and contain such endorsements as Buyer may require and which
are available under Louisiana law (the "Title Commitment").
The Title Commitment shall show Seller as the present fee
owner of the Property and show Buyer as the fee owner to be
insured. The Title Commitment shall also include an
itemization of all outstanding and pending special
assessments and an itemization of taxes affecting the
Property and the tax year to which they relate, shall state
whether taxes are current and if not, show the amounts
unpaid, the tax parcel identification numbers and whether
the tax parcel includes property other than the Property to
be purchased. All easements, restrictions, documents and
other items affecting title shall be listed in Schedule "B"
of the Title Commitment. Copies of all instruments creating
such exceptions must be attached to the Title Commitment.
Buyer shall be allowed ten (10) business days after receipt
of the Title Commitment and copies of all underlying
documents or until the end of the First Contingency Period,
whichever is later to be consistent with Article 8.01
hereof, for examination and the making of any objections
thereto, said objections to be made in writing or deemed
waived. If any objections are so made, the Seller shall be
allowed thirty (30) days to cure such objections or in the
alternative to obtain a commitment for insurable title
insuring over Buyer's objections. If Seller shall decide to
make no efforts to cure Buyer's objections, or is unable to
obtain insurable title within said thirty (30) day period,
this Agreement shall be null and void and of no further
force and effect and the ▇▇▇▇▇▇▇ Money shall be returned in
full to Buyer immediately and neither party shall have any
further duties or obligations to the other hereunder.
The Buyer shall also have ten (10) business days to review
and approve any easement, lien, hypothecation or other
encumbrance placed of record affecting the Property after
the date of the Title Commitment. If necessary, the Closing
Date shall be extended by the number of days necessary for
the Buyer to have ten (10) business days to review any such
items. Such ten (10) business day review period shall
commence on the date the Buyer is provided with a legible
copy of the instrument creating such exception to title.
The Seller agrees to inform the Buyer of any item executed
by the Seller placed of record affecting the Property after
the date of the Title Commitment. If any objections are so
made, the Seller shall be allowed thirty (30) days to cure
such objections or in the alternative to obtain a commitment
for insurable title insuring over Buyer's objections. If
Seller shall decide to make no efforts to cure Buyer's
objections, or is unable to obtain insurable title within
said thirty (30) day period, this Agreement shall be null
and void and of no further force and effect and the ▇▇▇▇▇▇▇
Money shall be returned in full to Buyer immediately and
neither party shall have any further duties or obligations
to the other hereunder.
7. Site Inspection. As a condition precedent to Buyer's
obligations hereunder, the Property shall be inspected and
approved by Buyer. Said inspection shall be completed prior
to the end of the First Contingency Period described in
Article 8.01 hereof.
8. Due Diligence and Contingency Periods.
8.01 First Due Diligence Documents and First Contingency
Period. Buyer shall have until the end of the First
Contingency Period to review the First Due Diligence
Documents, to conduct all of its inspections, due diligence
and review to satisfy itself regarding the Property and this
transaction. The First Contingency Period shall be defined
as the later of 1) the end of the business day on December
1, 2003, or 2) the end of the tenth (10th) business day
after the delivery of all of the First Due Diligence
Documents to be delivered by Seller. The First Due Diligence
Documents are obtained at the Seller's expense unless
specifically designated herein to be obtained by Buyer, and
such documents to be of current or recent date and certified
to Buyer. The First Due Diligence Documents are:
(a) The Title Commitment and all back-up
documentation;
(b) Final As-Built ALTA boundary survey of the
Property as described on Exhibit "B" attached
hereto.
(c) Phase I environmental assessment report and
Reliance Letter prepared by a company satisfactory
to Buyer containing evidence that the Property
complies with all federal, state and local
environmental regulations;
(d) Copies of the insurance polices and insurance
certificates for Lessee as required by the Lease;
(e) Final plans and specifications for the
Improvements;
(f) Zoning compliance letter from the municipality or
county exercising land use control over the
Property in form and substance satisfactory to
Buyer, to be obtained by Buyer;
(g) UCC searches on Lessee from the offices of the
state and county recorder in which the Property is
located;
(h) Financial statements of the Lessee and
Guarantor(s) as described on Exhibit "C" attached
hereto;
(i) Site plan and map(s) showing site and location of
competition;
(j) Demographic report showing data on trade area and
the neighborhood, if available;
(k) Copies of the Articles of Incorporation, the By-
Laws and a current Certificate of Good Standing
for the Lessee and Guarantor(s), together with all
other documents Buyer or Title Company deem
necessary to support the authority of the persons
executing any documents on behalf of the Seller,
Lessee or Guarantor(s);
(l) Soils report;
(m) Utility contacts for telephone, sewer, water, electric
and gas including company name, contact person, address,
telephone and fax number; and
All of the above-described documents (a) through (m) are
hereinafter collectively the "First Due Diligence
Documents").
After receipt and review of the First Due Diligence
Documents or after Buyer's inspection of the Property, Buyer
may cancel this Agreement for any reason in its sole
discretion by delivering a cancellation notice, return
receipt requested, to Seller and Closing Agent prior to the
end of the First Contingency Period and the ▇▇▇▇▇▇▇ Money
shall be returned in full to Buyer immediately and neither
party shall have any further duties or obligations to the
other hereunder. Such notice shall be deemed effective upon
receipt by Seller.
8.02 Form of Closing Documents. Prior to the end of the
First Contingency Period, Seller and Buyer shall agree on
the form of the following documents to be delivered to Buyer
on the Closing Date by Seller as set forth in Article 14
hereof:
(a) Act of Cash Sale;
(b) Seller's and Guarantor's Affidavit;
(c) FIRPTA Affidavit;
(d) Sublease between Seller and its subsidiary(s) to
the terms and conditions of the Lease to be
entered into between Buyer and Seller;
(e) Assignment of warranties from the party or parties
constructing the Improvements on the Property;
(f) Opinion of Counsel re: enforceability of the
Lease;
(g) Opinion of Counsel re: due authority of the Lessee
and Guarantor(s);
(h) Certificate of Completion executed by the project
architect, general contractor and Seller, or
Architect's Certificate, certifying that the
Improvements have been completed in accordance
with the plans and specifications and the soils
report for the Property and comply with all
applicable building, zoning, energy, environmental
laws and regulations and the Americans with
Disabilities Act;
(i) Hazardous Substances Indemnification Agreement;
(j) Lease; and
(k) Guarantee of Lease.
The above documents shall take the form of documents
previously agreed to between the parties, except as the
parties may otherwise mutually agree. In the event that
Seller and Buyer do not reach mutual agreement on the form
of the above described documents (a) through (k) prior to
the end of the First Contingency Period, this Agreement may
be terminated by either Seller or Buyer and the ▇▇▇▇▇▇▇
Money shall be returned in full to the Buyer immediately and
neither party shall have any further duties or obligations
to the other hereunder.
8.03 Second Due Diligence Documents and Second Contingency
Period. As soon as available, but in any event no later
than at least five (5) business days prior to the Closing
Date (the "Second Contingency Period"), Seller shall deliver
to Buyer the following items for review and acceptance:
(a) MAI appraisal, stating the value of the Property
with the completed Improvements thereon;
(b) A current financial statement of Seller Lessee and
Guarantor (s), certified as true and correct by an
appropriate officer of Seller;
(c) Any documents or written summary of facts known to
Seller that materially change or render incomplete, invalid,
or inaccurate any of the First Due Diligence Documents;
(d) Certificate of Completion executed by the project
architect, general contractor and the Seller, in form and
substance as agreed to between the Seller and Buyer prior to
the end of the First Contingency Period; and
(e) Copies of all warranties from the party or parties
constructing the Improvements on the Property.
(All of the above-described documents (a) through (e) are
hereinafter collectively the "Second Due Diligence
Documents").
Buyer shall have five (5) business days to examine and to
accept all of the above-described Second Due Diligence
Documents. After Buyer's receipt and review of the Second
Due Diligence Documents, Buyer may cancel this Agreement if
any of the Second Due Diligence Documents are not acceptable
to Buyer, in its sole discretion, by delivering a
cancellation notice, as provided herein, to Seller and
Closing Agent prior to the end of the Second Contingency
Period. Such notice shall be deemed effective upon receipt
by Seller. If Buyer so terminates this Agreement, the
▇▇▇▇▇▇▇ Money shall be returned in full to Buyer immediately
and thereafter neither party shall have any further duties
or obligations to the other hereunder.
It shall be a condition precedent to Buyer's obligations to
close hereunder that there have been no material changes in
any of the information reflected in the First or Second Due
Diligence Documents after the date of such document and
prior to closing.
Until this Agreement is terminated or the Closing has
occurred, the Seller shall deliver to the Buyer any
documentation that comes in the Seller's possession that
modifies any of the First or Second Due Diligence Documents,
or could render any of the First or Second Due Diligence
Documents materially inaccurate, incomplete or invalid. The
Buyer shall, in any event, have five (5) business days
before the Closing Date to review any such document and, if
necessary, the Closing Date shall be extended by the number
of days necessary for the Buyer to have five (5) business
days to review any such document or documents.
9. Closing Costs. Seller shall pay all costs of closing,
including, but not limited to, the owner's title insurance
policy, recording fees, escrow fees, the costs of the
updating and certifying all Due Diligence Documents unless
otherwise designated herein to be paid by Buyer and Buyer's
attorneys' fees.
10. Real Estate Taxes and Assessments. Seller represents
to Buyer that to the best of
its knowledge, all real estate taxes and installments of
special assessments due and payable on or before the Closing
Date have been or will be paid in full as of the Closing
Date. It is understood between Seller and Buyer that all
unpaid levied and pending special assessments are paid by
the Lessee and shall be the responsibility of the Lessee
under the Lease after the Closing Date.
11. Prorations. The Buyer and the Seller, as of the Closing
Date, shall prorate: (i) all rent due under the Lease, if
any, (ii) ad valorem taxes, personal property taxes, charges
or assignments affecting the Property (on a calendar year
basis), (iii) utility charges, including charges for water,
gas, electricity, and sewer, if any, (iv) other expenses
relating to the Property which have accrued but not paid as
of the Closing Date, based upon the most current
ascertainable tax ▇▇▇▇ and other relevant billing
information, including any charges arising under any of the
encumbrances to the Property. To the extent that
information for any such proration is not available on the
Closing Date or if the actual amount of such taxes, charges
or expenses differs from the amount used in the prorations
at closing, then the parties shall make any adjustments
necessary so that the prorations at closing are adjusted
based upon the actual amount of such taxes, charges or
expenses. The parties agree to make such reprorations as
soon as possible after the actual amount of real estate
taxes, charges or expenses prorated at closing becomes
available.
12. Seller's Representations and Warranties. Seller
represents and warrants as of this date and to the best of
Seller's knowledge after due inquiry that:
(a) Except for this Agreement Seller is not aware of
any other agreements or leases with respect to the
Property, relating to transfer of ownership,
except the Lease between Seller and ▇▇▇▇▇▇'▇
Italian Kitchen, Inc. (its wholly owned
subsidiary) ("Carino's"). At closing, Seller will
terminate the Lease with Carino's and enter into a
Sublease for the entire Premises with Carino's.
(b) Seller has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder.
(c) It does not have any actions or proceedings
pending, which would materially affect the
Property or Lessee or Guarantor(s), except matters
fully covered by insurance;
(d) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement
and the delivery of the warranty deed to Buyer,
will not result in any breach of, or constitute a
default under, any instrument to which Seller is a
party or by which Seller may be bound or affected;
e) All of Seller's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto,
shall survive the delivery to AEI of the warranty
deed and other documents furnished in accordance
with this Agreement, and the provision hereof
shall continue to inure to Buyer's benefit and its
successors and assigns;
(f) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not
been made the subject of any condemnation
proceeding;
(g) The use and operation of the Property now is in
full compliance with applicable local, state and
federal laws, ordinances, regulations and
requirements;
(h) Seller has not caused or permitted any, and to the
best of Seller's knowledge after due inquiry, the
Property is not in violation of any federal, state
or local law, ordinance or regulations relating to
industrial hygiene or to the environmental
conditions, on, under or about the Property,
including, but not limited to, soil and
groundwater conditions. There is no proceeding or
inquiry by any governmental authority with respect
to the presence of hazardous materials on the
Property or the migration of hazardous materials
from or to other property;
(i) These Seller's representations and warranties
deemed to be true and correct as of the Closing
Date and shall survive the closing.
13. Buyer's Representations and Warranties. Buyer
represents and warrants to Seller that:
(a) Buyer has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder;
(b) Neither the execution and delivery of this
Agreement nor the consummation of the transaction
contemplated hereunder will violate or be in
conflict with any agreement or instrument to which
Buyer is a party or by which Buyer is bound;
(c) These Buyer's representations and warranties
deemed to be true and correct as of the Closing
Date and shall survive the closing.
14. Closing.
(a) Three (3) days prior to the Closing Date, with
simultaneous copy to Buyer, Seller will deposit into escrow
with the Closing Agent the following documents on or before
the Closing Date:
(1) An Act of Cash Sale conveying insurable title to
the Property to Buyer, in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(2) Estoppel letter from Lessee, in form and substance
as agreed to between Seller and Buyer during the
First Contingency Period;
(2) Affidavit of Seller and Guarantor, in form and
substance as agreed to between Seller and Buyer
during the First Contingency Period;
(3) FIRPTA Affidavit, in form and substance as agreed
to between Seller and Buyer during the First
Contingency Period;
(4) Any documentation modifying the Lease and/or
Guaranty as may be required by Buyer and agreed to
between Buyer and Seller during the First
Contingency Period;
(5) Hazardous Substances Indemnification Agreement of
Seller in form and substance as agreed to between
Seller and Buyer during the First Contingency
Period;
(6) Opinion of Counsel regarding enforceability of the
Lease and compliance with local law (from an
attorney acceptable to Buyer in the state where
the Property is located) in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(7) Opinion of Counsel regarding due authority of
Lessee and execution and delivery of the Lease by
Lessee (from Lessee's counsel), in a form and
substance as agreed to between Seller and Buyer
during the First Contingency Period ;
(8) Assignments of all warranties (and the written
consents of the assignments thereof by the party
giving the warranty) from the party or parties
constructing the Improvements on the Property.
(9) Original insurance policy of Lessee as required by
the Lease;
(10) Copy of the final unconditional Certificate of
Occupancy for the Property authorizing Lessee's
use and occupancy of the Property;
(11) Certificate of Completion executed by the project
architect, general contractor and the Seller, in
form and substance as agreed to between the Seller
and Buyer prior to the end of the First
Contingency Period;
(12) A down-dated title commitment for an owner's
title insurance policy, reflecting only permitted
exceptions approved by Buyer during the First
Contingency Period and including all endorsements
required by Buyer, with all Schedule C
requirements removed;
(13) Copies of any and all certificates, permits,
licenses and other authorizations of any
governmental body or authority which are necessary
to permit the use and occupancy of the
Improvements;
(14) Certified project cost statement, signed by Seller,
itemizing the following costs: land acquisition, building
construction and site work;
(15) Guarantee of Lease; and
(16) Executed Lease.
(b) On or before the Closing Date, Buyer will deposit the
Purchase Price, less any ▇▇▇▇▇▇▇ Money, with the Closing
Agent;
(c) Both parties will sign and deliver to the Closing Agent
any other documents reasonably required by the Closing Agent
and/or the Title Company.
15. Termination. This Agreement may be terminated prior to
closing at Buyer's option and the ▇▇▇▇▇▇▇ Money returned to
Buyer in full immediately in the event of any of the
following occurrences:
(a) Seller fails to comply with any of the terms
hereof;
(b) A default exists in any material financial
obligation of Seller, Lessee or Guarantor(s);
(c) Any representation made or contained in any
submission from Seller, Lessee or Guarantor(s), or
in the Due Diligence Documents, proves to be
untrue in any material respect, substantially
false or misleading in any material respect at any
time prior to the Closing Date;
(d) There has been a material adverse change in the
financial condition of Lessee or Guarantor(s) or
there shall be a material action, suit or
proceeding pending or threatened against Seller,
which affects Seller's ability to perform under
this Agreement or against Lessee or Guarantor(s),
which affects their respective abilities to
perform under the Lease or Guaranty;
(e) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by
or against Seller or Lessee or Guarantor(s);
(f) Seller, Lessee or Guarantor(s) shall be dissolved,
liquidated or wound up;
(g) Lessee does not take possession of the Property
and/or commence paying rent under the Lease by the
Closing Date;
(h) Notice given by Buyer pursuant to any right of
termination herein.
16. Damages, Destruction and Eminent Domain. If, prior to
the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement, this Agreement shall become null and void,
at Buyer's option, exercised by written notice to Seller
within ten (10) business days after Buyer has received
written notice from Seller of said destruction or damage.
Seller, however, shall have the right to adjust or settle
any insured loss until (a) all contingencies set forth in
Article 8 hereof have been satisfied, or waived; and (b) any
period provided for above in Article 8 hereof for Buyer to
elect to terminate this Agreement has expired or Buyer has,
by written notice to Seller, waived Buyer's right to
terminate this Agreement. If Buyer elects to proceed and to
consummate the purchase despite said damage or destruction,
there shall be no reduction in or abatement of the Purchase
Price, and Seller shall assign to Buyer the Seller's right,
title and interest in and to all insurance proceeds
resulting from said damage or destruction to the extent that
the same are payable with respect to damage to the Property,
subject to the rights of the Lessee under the Lease.
If prior to closing, the Property, or any part thereof,
is taken by eminent domain, this Agreement shall become null
and void, at Buyer's option. If Buyer elects to proceed and
to consummate the purchase despite said taking, there shall
be no reduction in, or abatement of, the Purchase Price and
Seller shall assign to Buyer all the Seller's right, title
and interest in and to any award made, or to be made, in the
condemnation proceeding, subject to the rights of the Lessee
under the Lease.
In the event that this Agreement is terminated by Buyer as
provided above, the ▇▇▇▇▇▇▇ Money shall be returned to Buyer
immediately after execution by Buyer of such documents
reasonably requested by Seller to evidence the termination
hereof.
17. Notices. All notices from either of the parties hereto
to the other shall be in writing and shall be considered to
have been duly given or served if sent by first class
certified mail, return receipt requested, postage prepaid,
or by a nationally recognized courier service guaranteeing
overnight delivery to the party at his or its address set
forth below, or to such other address as such party may
hereafter designate by written notice to the other party.
If to Seller: Kona Restaurant Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer: AEI Fund Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notice shall be deemed received 48 hours after proper
deposit in U.S. Mail, or 24 hours after proper deposit with
a nationally recognized overnight courier.
18. Miscellaneous.
a. This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement, the prevailing party
will be entitled to recover attorney's fees and costs. This
is an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreement or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
b. If the transaction contemplated hereunder does not
close by the Closing Date, through no fault of Buyer, Buyer
may either, at it election, extend the Closing Date,
exercise any remedy available to it by law, or terminate
this Agreement and receive its ▇▇▇▇▇▇▇ Money back in full
immediately.
c. This Agreement shall be assignable by Buyer, at its
option, in whole or in part, in such manner as Buyer may
determine, to an affiliate of affiliates of Buyer.
d. The Buyer and Seller each warrant to the other that
neither party hereto has had any dealing with any real
estate brokers or salespersons which would result in a claim
for a commission.
19. Commitment Fee and Site Inspection Fee.
Seller shall pay to Buyer an application and commitment fee
equal $15,000 (the "Commitment Fee") at the time of Seller's
execution of this Agreement. In the event this Agreement is
terminated by Buyer pursuant to rights to do so hereunder,
the Commitment Fee shall be refunded to Seller less Buyer's
out-of-pocket costs incurred hereunder, including, but not
limited to, Buyer's overhead, third party expenses, and
attorneys' fees. Seller shall also pay Buyer a $1,500 site
inspection fee.
20. Base Rent reduction. Buyer shall provide in the Lease
for the Lessee to be able anytime in the first 18 months of
the Lease, to "buy-down" the Base Rent by the payment of
$300,000, resulting in a corresponding $27,750 reduction in
the Base Rent then payable. Buyer and Seller must mutually
agree on the language describing such provision in the
Lease.
Buyer is submitting this offer by signing a copy of this
Agreement and delivering it to Seller. Seller has until
December 3, 2003, within which time to accept this offer by
signing and returning this Agreement to Buyer. When
executed by both parties, this Agreement will be a binding
agreement for valid and sufficient consideration which will
bind and benefit Seller, Buyer and their respective
successors and assigns.
The remainder of the page has intentionally been left blank.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the day and year above first
written.
SELLER:
KONA RESTAURANT GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed Name:▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Chief Financial Officer
BUYER:
AEI Income & Growth Fund 25 LLC
BY: AEI Fund Management XXI, Inc.
By:/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
AEI Private Net Lease Millennium Fund Limited Partnership
BY: AEI Fund Management XVIII, Inc.
By:/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
EXHIBIT "A"
LEGAL DESCRIPTION
That certain lot or parcel of ground, together with all
buildings and improvements thereon, and all rights, way,
privileges, servitudes, appurtenances and advantages
thereunto belonging or in anywise appertaining, containing
approximately 1.572 acres, being Outparcel A-3-2 and a
portion of Outparcel A-2 of Lake ▇▇▇▇▇▇▇ Power Centre
located in ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ of Calcasieu, State of Louisiana, more particularly
described as follows:
Commencing at a found 3/4" iron pipe on the North right-
of-way line of ▇▇▇▇▇▇▇ Loop and the Southeast corner of
Outparcel A-2, thence proceed North 00 degrees 14 minutes 31
seconds East for a distance of 228.26 feet to a found 3/4
inch iron pipe, said point being the Point of Beginning;
Thence proceed 89 degrees 12 minutes 36 seconds West
for a distance of 304.95 feet to a found 3/4 inch iron pipe;
thence proceed North 00 degrees 14 minutes 31 seconds East
for a distance of 225.34 feet t a found 3/4 inch iron pipe
on the South right-of-way line of ▇▇▇▇▇ Drive; thence
proceed along said right-of-way line, 14.85 feet along the
arc of a non-tangent curve to the right having a radius of
400.00 feet, a delta angle of 02 degrees 07 minutes 36
seconds, a chord bearing of North 89 degrees 45 minutes 44
seconds East, and a chord distance of 14.85 feet to a set
1/2 inch iron pipe; thence continue along said right-of-way
line, South 89 degrees 12 minutes 36 seconds East for a
distance of 217.83 feet to a set "x" in concrete; thence
continue along said right-of-way line, 73.84 feet along the
arc of a tangent curve to the right having a radius of
215.00 feet, a delta angle of 19 degrees 40 minutes 40
seconds, a chord bearing of South 79 degrees 22 minutes 16
seconds East, and a chord distance of 73.48 feet to a set
"x" in concrete; thence leaving said right-of-way line,
proceed South 00 degrees 14 minutes 31 seconds West for a
distance of 213.05 feet back to the Point of Beginning.
The said Property is bounded on the North by ▇▇▇▇▇
Drive, on the South by property owned, now or formerly, by
First Summit Group, L.L.C., on the East by property
dedicated to the City of Lake Charles, Louisiana, and on the
West by property owned, now or formerly, by Concept
Investments, Inc and by property owned, now or formerly, by
Ole South Land & Development, L.L.C.