PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Restaurant - Columbus, OH
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 24 day of May, 2001, by and
between Xxxxxx X. Xxxxxxx (hereinafter called "Xxxxxxx"), and AEI
Real Estate Fund XVIII Limited Partnership (hereinafter called
"Fund XVIII"). Wood, Fund XVIII (and any other Owner in Fee where
the context so indicates) being hereinafter sometimes
collectively called "Co-Tenants" and referred to in the neuter
gender).
WITNESSETH:
WHEREAS, Fund XVIII presently owns an undivided 5.0132% interest
in and to, and Xxxxxxx presently owns an undivided 6.5437%
interest in and to, and Xxxxxx X. Xxxx and Xxx X. Xxxx presently
owns an undivided 5.3418% interest in and to, and Xxxx Xxxxxxx
and Xxxxxxx Xxxxxxx presently owns an undivided 2.6709% interest
in and to, and Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx presently
owns an undivided 7.2676% interest in and to, and Xxxxx X. Xxx
and Xxxx X. Xxx presently owns an undivided 6.3701% interest in
and to, and Tall Pines Farm Limited Partnership presently owns an
undivided 6.4252% interest in and to, and Xxxxxx X. Xxxxxxxx and
Xxxx X. Xxxxxxxx presently owns an undivided 6.2036% interest in
and to, and Xxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxx presently
owns an undivided 4.9629% interest in and to, and Xxxxx Xxxxxx
Xxxxx presently owns an undivided 7.0899% interest in and to, and
Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx presently owns an
undivided 8.9900% interest in and to, and Xxxxxxx Xxxxxx and
Xxxxxxxx Xxxxxx presently owns an undivided 7.0899% interest in
and to, and Xxxxxxxxxx Investments Limited Partnership presently
owns an undivided 11.8514% interest in and to, and Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx presently owns an undivided
7.0899% interest in and to, and Xxxxx X. Xxxxxxx presently owns
an undivided 7.0899% interest in and to, and the land, situated
in the City of Columbus, County of Franklin, and State of Ohio,
(legally described upon Exhibit A attached hereto and hereby made
a part hereof) and in and to the improvements located thereon
(hereinafter called "Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Xxxxxxx'x interest
by Fund XVIII; the continued leasing of space within the
Premises; for the distribution of income from and the pro-rata
sharing in expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Xxxxxxx of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
1. The operation and management of the Premises shall be
delegated to Fund XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority of the
undivided co-tenancy interest in the Premises. Except as
hereinafter expressly provided to the contrary, each of the
parties hereto agrees to be bound by the decisions of Fund XVIII
with respect to all administrative, operational and management
matters of the property comprising the Premises, including but
not limited to the management of the net lease agreement for the
Premises. The parties hereto hereby designate Fund XVIII as their
sole and exclusive agent to deal with, and Fund XVIII retains the
sole right to deal with, any property agent or tenant and to
negotiate and enter into, on terms and provisions satisfactory to
Fund XVIII, and to monitor, execute and enforce the terms of
leases of space within the Premises, including but not limited to
any amendments, consents to assignment, sublet, releases or
modifications to leases or guarantees of lease or easements
affecting the Premises, on behalf of Xxxxxxx. As long as Fund
XVIII owns an interest in the Premises, only Fund XVIII may
obligate Xxxxxxx with respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any lessee of the Premises to name Xxxxxxx as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII shall use
its best efforts to obtain endorsements adding Co-Tenants to said
policies from lessee within 30 days of commencement of this
agreement. In any event, Fund XVIII shall distribute any
insurance proceeds it may receive, to the extent consistent with
any lease on the Premises, to the Co-Tenants in proportion to
their respective ownership of the Premises.
2. Income and expenses shall be allocated among the Co-Tenants
in proportion to their respective share(s) of ownership. Shares
of net income shall be pro-rated for any partial calendar years
included within the term of this Agreement. Fund XVIII may offset
against, pay to itself and deduct from any payment due to Xxxxxxx
under this Agreement, and may pay to itself the amount of
Xxxxxxx'x share of any reasonable expenses of the Premises which
are not paid by Xxxxxxx to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Xxxxxxx'x
unpaid share of operating expenses, Fund XVIII may pursue any and
all legal remedies for collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
tenant under terms of any lease agreement of the Premises.
Wood has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $686.00 for the expenses, direct and indirect, incurred
by Fund XVIII in providing Xxxxxxx with quarterly accounting and
distributions of Xxxxxxx'x share of net income and for tracking,
reporting and assessing the calculation of Xxxxxxx'x share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Xxxxxxx
authorizes Fund XVIII to deduct such amount from Xxxxxxx'x share
of revenue from the Premises. Xxxxxxx may terminate this
agreement in this paragraph respecting accounting and
distributions at any time and attempt to collect its share of
rental income directly from the tenant; however, enforcement of
all other provisions of the lease remains the sole right of Fund
XVIII pursuant to Section 1 hereof. Fund XVIII may terminate its
obligation under this paragraph upon 30 days notice to Xxxxxxx
prior to the end of each anniversary hereof, unless agreed in
writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII's principal office, and each Co-Tenant shall have
access to such books and may inspect and copy any part thereof
during normal business hours. Within ninety (90) days after the
end of each calendar year during the term hereof, Fund XVIII
shall prepare an accurate income statement for the ownership of
the Premises for said calendar year and shall furnish copies of
the same to all Co-Tenants. Quarterly, as its share, Xxxxxxx
shall be entitled to receive 6.5437% of all items of income and
expense generated by the Premises. Upon receipt of said
accounting, if the payments received by each Co-Tenant pursuant
to this Paragraph 3 do not equal, in the aggregate, the amounts
which each are entitled to receive proportional to its share of
ownership with respect to said calendar year pursuant to
Paragraph 2 hereof, an appropriate adjustment shall be made so
that each Co-Tenant receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XVIII sufficient to pay said net operating losses
and to provide necessary operating capital for the premises and
to pay for said capital improvements, repairs and/or
replacements, all in proportion to their undivided interests in
and to the Premises.
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute.
7. This co-tenancy agreement shall continue in full force and
effect and shall bind and inure to the benefit of the Co-Tenant
and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns until August
29, 2031 or upon the sale of the entire Premises in accordance
with the terms hereof and proper disbursement of the proceeds
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
thereof, whichever shall first occur. Unless specifically
identified as a personal contract right or obligation herein,
this agreement shall run with any interest in the Premises and
with the title thereto. Once any person, party or entity has
ceased to have an interest in fee in any portion of the Premises,
it shall not be bound by, subject to or benefit from the terms
hereof; but its heirs, executors, administrators, personal
representatives, successors or assigns, as the case may be, shall
be substituted for it hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be given
to all known Co-Tenants and deemed given or served in accordance
with the provisions of this Agreement, if said notice or
elections addressed as follows;
If to Fund XVIII:
AEI Real Estate Fund XVIII Limited Partnership
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxx, Xxxxxxxxx 00000
If to Fund XXI:
AEI Income and Growth Fund XXI Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
If to Xxxxxxx:
Xxxxxx X. Xxxxxxx
0000 Xxxx 000 Xxxxx
Xxxxxxxxxxx, XX 00000
If to Wood:
Xxxxxx X. Xxxx, Trustee
Xxx X. Xxxx, Trustee
000 Xxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
If to Xxxxxxx:
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
If to Xxxxxx:
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to Rea:
Xxxxx X. Xxx
Xxxx X. Xxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Tall Pines Farm Limited Partnership:
Xxxx Xxxxx, member
E. Xxxxxx Xxxxx, member
Xxxx X. Xxxxx, member
Xxxxxx X. Xxxxxxx, member
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Appleton:
Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
If to Xxxxxx:
Xxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
If to Amend:
Xxxxx Xxxxxx Xxxxx
XX Xxx 000
Xxxxxxxx, XX 00000
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
If to Ainslie:
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
00000 Xxx Xx Xxxxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
If to Xxxxxx:
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
000 Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
If to Xxxxxxxxxx:
Xxxxxxxxxx Investments Limited Partnership
Xxxxxx X. Xxxxxxxx, general partner
Xxxx X. Xxxxxxxxxx, general partner
000 X. Xxxxx Xxxxx
Xxxxx, XX 00000
If to Xxxxxxx:
The Xxxxx X. Xxxxxxx Second Family Limited Partnership
Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
XX Xxx 000
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx
WITNESS:
/s/ Xxxxxxx X Xxxxx
Xxxxxxx X Xxxxx
(Print Name)
State of Indiana)
) ss.
County of La Grange )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 17 day of May, 2001,
Xxxxxx X. Xxxxxxx, who executed the foregoing instrument in said
capacity, on behalf of said limited partnership.
/s/ Xxx X Xxxxxxx
Notary Public
[notary seal]
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate
general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
WITNESS:
/s/ Xxxxx X Xxxxxx
Xxxxx X Xxxxxx
(Print Name)
State of Minnesota )
) ss.
County of Xxxxxx )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 22 day of May, 2001,
Xxxxxx X. Xxxxxxx, President of AEI Fund Management XVIII, Inc.,
corporate general partner of AEI Real Estate Fund XVIII Limited
Partnership, who executed the foregoing instrument in said
capacity and on behalf of the corporation in its capacity as
corporate general partner, on behalf of said limited partnership.
/s/ Xxxxxxx X Xxxxxx
Notary Public
[notary seal]
Co-Tenant Initial: /s/ WLS
Co-Tenancy Agreement for Champps, Columbus, OH (Crosswoods)
EXHIBIT A
Situated in the State of Ohio, county of Franklin, City of
Columbus, being located in Xxxxxxx 0, Xxxxxxxx 0, Xxxxx 00,
Xxxxxx Xxxxxx Military Lands, and being part of a 43.161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor) by deed of record in Official
Record 15500A-6, all references being to records in the
Recorder's Office, Franklin County, Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (U.S. 23) and East Campus jView Boulevard (80.00 feet
in width) as shown in Plat Book 60, page 25;
thence S 86 49' 53" E, along the centerline of said East
Campus View boulevard, a distance of 900.00 feet to a point
of curvature;
thence along the centerline of said East Campus View
Boulevard, with a curve to the left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53' 32" E, along the centerline of said High
Cross Boulevard, a distance of 74.72 feet to a point;
thence N 88 06' 28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the TRUE POINT OF BEGINNING of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23' 34" E, and a
chord distance of 53.83 feet to an iron pin set in the
southerly right of way line of said East Campus View
Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.009 feet, a chord bearing of N 82 25' 24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View Boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence S 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10' 11" W, along the southerly line of herein
described tract, a distance of 918.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said proposed
High Cross Boulevard and the westerly line of herein
described tract, with a curve to the right, having a radius
of 2960.00 feet, a chord bearing of N 9 21' 59" E, and a
chord distance of 10.64 feet to an iron pin set;
thence N 9 28' 10" E, along the easterly right of way line
of said High Cross Boulevard and the westerly line of herein
described tract, a distance of 89.24 feet to an iron pin
set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing of N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 1 53' 32" W, along the easterly right of way line
of said High Cross Boulevard and the westerly line of herein
described tract, a distance of 106.36 feet to the TRUE POINT
OF BEGINNING, containing 2.005 acres, more or less, and
subject to any rights of way, easements and restrictions of
record.
The Basis of Bearing in this description is the centerline of
East Campus View Boulevard being S 86 49' 53" E, as shown in Plat
Book 61, page 79, Recorder's Office, Franklin County, Ohio.
