PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant - Columbus, OH (Easton)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 27th day of March, 2001, by and
between Xxxxxx Xxxxx and Xxx Xxxxx, married as joint tenants,
(hereinafter called " Kethe"), and AEI Net Lease Income & Growth
Fund XX Limited Partnership (hereinafter called "Fund XX")
(Kethe, Fund XX (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 XX presently owns an undivided 34.4198% interest in
and to, and Kethe presently owns an undivided 4.5788% interest in
and to, and Xxxxxx X. Xxxxxxxxx presently owns an undivided
2.7015% interest in and to, and Xxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx presently owns an undivided 5.3572% interest in and to,
and Xxxxxx X. Nate and Xxxxxx X. Nate presently owns an undivided
4.5788% interest in and to, and Xxxxxxx X. Xxxxx and Xxxxxx Xxx
Xxxxx, presently owns an undivided 3.1594% interest in and to,
and Xxxxx X. Xxxxxx and Xxxxxxxx Xxxxxx presently owns an
undivided 4.3957% interest in and to, and Xxxxx X. Xxxxxxx
presently owns an undivided 13.7365% interest in and to, and Xxxx
Xxxxxxx presently owns an undivided 4.2927% in and to, and
Xxxxxxx X. Xxxxxxxx owns an undivided 5.1512% interest in and to,
and Xxxxxx Xxxx presently owns an undivided 5.7235% in and to,
and Maricopa Land and Cattle Company presently owns an undivided
4.5788% interest in and to, and Xxxxxx Xxxxx presently owns an
undivided 7.3261% interest in and to 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 Kethe's interest by
Fund XX; 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 Kethe 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:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
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 undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX 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.
Kethe, subject to the limitations and powers of revocation herein
expressed, hereby designated Fund XX as its sole and exclusive
agent to deal with, and Fund XX retains the sole right to deal
with, any property agent or tenant and to monitor and enforce on
behalf of Kethe the terms of the present lease of the Premises,
including but nor limited to any amendments, consents to
assignment, sublet, releases, or modifications to leases or
guarantees of lease; subject to the approval of Kethe evidenced
by Kethe's written consent, Fund XX shall negotiate and execute
re-leases of the Premises upon termination of the present lease
of the Premises or negotiate and execute easements affecting the
Premises, and propose extraordinary or capital expenditures to
the Premises. Until Kethe shall revoke such authority as provided
herein, Fund XX or Kethe may obligate Kethe with respect to any
ordinary and necessary operating expense for the Premises.
However, Fund XX has no right to obtain a loan for which any
other Co-Tenant would be liable, nor may Fund XX finance or
refinance the Premises by secured by any lien or any pledge of
the Premises. Kethe agrees to execute and deliver to Fund XX such
written approval of documents approved by Kethe, such approval to
take such form as may reasonably required by Fund XX to evidence
its authority to sign approved documents on behalf of Kethe.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any lessee of the Premises to name Kethe [changed to
conform to the facts /s/ RK /s/ IK /s/ XXX] as an insured or
additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XX 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 XX 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 XX may offset
against, pay to itself and deduct from any payment due to Kethe
under this Agreement, and may pay to itself the amount of Kethe's
share of any reasonable expenses of the Premises which are not
paid by Kethe to Fund XX or its assigns, within ten (10) days
after demand by Fund XX. In the event there is insufficient
operating income from which to deduct Kethe's unpaid share of
operating expenses, Fund XX 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 and
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.
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
Kethe has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $560.00 for the expenses, direct and indirect, incurred by
Fund XX in providing Kethe with quarterly accounting and
distributions of Kethe's share of net income and for tracking,
reporting and assessing the calculation of Kethe's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Kethe authorizes
Fund XX to deduct such amount from Kethe's share of revenue from
the Premises. Kethe 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 XX pursuant to Section 1 hereof.
Fund XX may terminate its obligation under this paragraph upon 30
days notice to Kethe 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 XX'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 XX 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, Kethe shall be entitled
to receive 4.5788% 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 therefore from Fund XX, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XX 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.
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
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 April 16,
2034 or upon the sale of the entire Premises in accordance with
the terms hereof and proper disbursement of the proceeds 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 Property and with the title
thereto. Once any person, party or entity has ceased to have an
interest in fee in any portion of the Entire Property, 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 XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxx, XX 00000
If to Kethe:
Xxxxxx Xxxxx
Xxx Xxxxx
00000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxxxxx, XX 00000
If to Jefferson:
Xxxxxx X. Xxxxxxxxx
Xxxxxx XxxxXxxxxx, Attorney in fact
00000 Xxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
If to Xxxxxxxx:
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
If to Nate:
Xxxxxx X. Nate
Xxxxxx X. Nate
000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Xxxxx:
Xxxxxxx X. Xxxxx
Xxxxxx Xxx Xxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxx:
Xxxxx X. Xxxxxx
Xxxxxxxx Xxxxxx
0000 X Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
If to Xxxxxxxx:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
If to Kung:
Xxxxxxx Xxxx
C/O Sunshine Industrial Corp. Second Floor
Xx. 00 Xxxxx Xxxx Xxxx, Xxxxxxx 0
Xxxxxx 000, Xxxxxx R.O.C.
If to Maricopa:
Xx. X.X. Xxxxxx, President
Maricopa Land & Cattle Company, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
If to Xxxxx:
Xxxxxx Xxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, 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
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
Co-Tenant Initial: /s/ RK /s/ IK
Co-Tenancy Agreement for Champps Americana Restaurant-Columbus, OH (Easton)
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
12. Kethe may, at any time effective upon written notice to Fund
XX, revoke the designation of Fund XX as Kethe's agent for the
purposes as set forth herein, but may not revoke obligations
imposed upon all Co-Tenants as may be so designated as set forth
herein, Kethe when revoking Fund XX's agency shall notify Fund XX
in writing in accordance with the terms hereof and such
revocation shall be effective upon Fund XX's receipt of such
written revocation.
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Kethe Xxxxxx Xxxxx and Xxx Xxxxx
By:/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
By:/s/ Xxx Xxxxx
Xxx Xxxxx
WITNESS:
(Both Signers)
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
(Print Name)
STATE OF MICHIGAN)
) ss
COUNTY OF MACOMB)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 21st day of March,
2001, Xxxxxx Xxxxx and Xxx Xxxxx, married as joint tenants, who
executed the foregoing instrument in said capacity.
/s/ Xxxx X Xxxxx
Notary Public
[notary stamp]
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By:/s/ Xxxx X Xxxxxx
Xxxx X Xxxxxx Chief Financial Officer
WITNESS:
/s/ Xxxx X Xxxxxxx
Xxxx X Xxxxxxx
(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 27th day of March,
2001, Xxxx X Xxxxxx, Chief Financial Officer of AEI Fund
Management XX, Inc., corporate general partner of Net Lease
Income & Growth Fund XX 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 stamp]
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
EXHIBIT "A"
Situated in the State of Ohio, County of Franklin, City
of Columbus, Xxxxxxx 0, Xxxxxxxx 0, Xxxxx 00, Xxxxxx Xxxxxx
Military Lands and being all out of a 3.499 acre residual of
Parcel 2 as conveyed to MORSO Holding Co. of record in
Official Record 30846G11 (all deed references refer to the
records of the Recorder's Office, Franklin County, Ohio) and
described as follows:
Beginning for reference at the centerline intersection
of Easton Way with Xxxxx Crossing as dedicated in Plat Book
86, Pages 56-58;
thence North 2 18' 27" East, with the centerline of
said Xxxxx Crossing, a distance of 1043.69 feet to a point;
thence North 87 41' 33" West, a distance of 55.00 feet
to a point in the westerly right-of-way line of said Xxxxx
Crossing;
thence with said westerly right-of-way line, the
following courses:
North 2 18' 27" East, a distance of 23.37 feet to a
point of curvature;
With a curve to the right having a central angle of 1
26' 50", a radius of 1055.00 feet, whose chord bears North 3
01' 51" East, a chord distance of 26.65 feet to an iron pin
set at the true point of beginning for this description;
thence with a new division line across said 3.499 acre
residual, the following courses:
North 87 41' 33" West, a distance of 39.98 feet to an
iron pin set;
South 2 18' 27" West, a distance of 11.51 feet to an
iron pin set;
North 87 41' 33" West, a distance of 86.86 feet to an
iron pin set;
North 42 41' 33" West, a distance of 84.15 feet to an
iron pin set;
North 87 41' 33" West, a distance of 19.50 feet to an
iron pin set;
North 2 18' 27" East, a distance of 120.00 feet to an
iron pin set'
North 87 41' 33" West, a distance of 184.50 feet to an
iron pin set in an easterly line of a 50.706 acre tract as
conveyed to Easton Market Limited Liability Company of
record in Official Record 34933B09;
thence North 2 18' 27" East, with an easterly line of
said Easton market tract, a distance of 163.36 feet to an
iron pin set at a southeasterly corner thereof;
thence with a southerly line of said Easton Market
tract, the following courses and distances:
South 80 11' 33" East, a distance of 257.28 feet to an
iron pin set at a point of curvature;
With a curve to the right having a central angle of 27
45' 35", a radius of 180.00 feet, whose chord bears South 66
18' 45" East, a chord distance of 86.36 feet to an iron pin
set at a point of reverse curvature;
With a curve to the left having a central angle of 20
08' 31", a radius of 220.00 feet, whose chord bears South 62
30' 13" East, a chord distance of 76.94 feet to an iron pin
set at a point of tangency;
South 72 34' 34" East, a distance of 7.17 feet to a
point of curvature;
With a curve to the right having a central angel of 88
23' 07", a radius of 10.00 feet, whose chord bears South 28
23' 00" East, a chord distance of 13.94 feet to a point of
reverse curvature in said westerly right-of-way line;
Thence with said westerly right-of-way line with a
curve to the left having a central angle of 12 03' 18", a
radius of 1055.00 feet, whose chord bears South 9 46' 55"
West, a chord distance of 221.56 feet to the true point of
beginning and containing 2.012 acres of land, more or less.
Subject, however to all legal rights-of-way and/or
easements, if any, of previous record.
Bearings are based on the Ohio State Plane Coordinate System as
per NAD 83. Control for bearing was from coordinates of
monuments XXXXX 64 and XXXXX 164 established by the Franklin
County Engineering Department using Global Positioning System
procedures and equipment.
