FIRST AMENDMENT TO NET LEASE AGREEMENT
THIS AMENDMENT TO NET LEASE AGREEMENT, made and entered
into effective as of the 18th day of December, 2003, by and
between AEI Income & Growth Fund 23 LLC ("Fund 23"), whose
corporate managing member is AEI Fund Management XXI, Inc., whose
address is 1300 Xxxxx Fargo Place, 00 Xxxx Xxxxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000 ("Lessor")(fax #000 000 0000), and Kona
Restaurant Group, Inc., a Delaware corporation, whose address is
00000 Xxxxxxx 00 Xxxx, Xxxxx 0, Xxxxxxxxx, Xxxxx 00000 ("Lessee")
(fax # 000 000 0000);
WITNESSETH:
WHEREAS, Lessor is the fee owner of a certain parcel of real
property and improvements located at Parker, Colorado, 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 have entered into that certain
Net Lease Agreement dated April 4, 2003 (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 the period
commencing April 4, 2003, ("Occupancy Date") through the
effective date hereof, plus Seventeen (17) consecutive "Lease
Years", as hereinafter defined, commencing on the effective date
hereof, with the contemplated initial term hereof ending on
December 31, 2020.
(B) The first full Lease Year shall commence on the date of
this First Amendment and continue through December 31, 2004. Each
Lease Year after the first Lease Year shall be a successive
period of twelve (l2) calendar months.
2. Article 4(A) of the Lease shall henceforth read as follows:
ARTICLE 4. RENT PAYMENTS
(A) Annual Rent Payable for the first Lease Year:
Lessee shall pay to Lessor Fund 23 an annual Base Rent
of $236,000, which amount shall be payable in advance
on the first day of each month in equal monthly
installments of $19,666.67 to Lessor 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 35 is hereby deleted in its entirety; Lessor
and Lessee agree that the referenced Development
Financing Agreement is terminated in accordance with
its terms.
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.
8. Exhibit B to the Lease shall be as attached hereto,
reflecting personalty on the Leased Premises owned
by Lessor. All other terms and conditions of the Lease
shall remain in full force and effect.
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed
and sealed this Lease as of the day and year first above written.
LESSEE: Kona Restaurant Group, Inc.,
By: /s/ Xxxxx Xxxxxxx
Its: Chief Financial Officer
LESSOR: AEI INCOME & GROWTH FUND 23 LLC
By: AEI FUND MANAGEMENT XXI, INC., a
Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
EXHIBIT "A"
LEGAL DESCRIPTION
Xxx 0, Xxxxx Xxxxx X#0,0xx Xxxxxxxxx, according to the Plat
recorded July 3, 2001, Reception Xx. 00000000, Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx of Xxxxxxx, State of Colorado.
