PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant - Columbus, OH (Easton)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30 day of November, 2000, by and
between Xxxxx X. Xxxxxxx (hereinafter called "Xxxxxxx"), and
AEI Net Lease Income & Growth Fund XX Limited Partnership
(hereinafter called "Fund XX") (Xxxxxxx, 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 59.1912% interest in
and to, Xxxxx X. Xxxxxxx presently owns an undivided 13.7365%
interest in and to, Xxxx Xxxxxxx presently owns an undivided
4.2927% in and to, Xxxxxxx X. Xxxxxxxx owns an undivided 5.1512%
interest in and to, and Xxxxxx Xxxx presently owns an undivided
5.7235%, 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 Xxxxxxx'x 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 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:
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 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. Xxxxxxx hereto hereby designates Fund XX as its
sole and exclusive agent to deal with, and Fund XX retains the
sole right to deal
Co-Tenant Initial: /s/ SS
Co-Tenancy Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
with, any property agent or tenant and to negotiate and enter
into, on terms and provisions satisfactory to Fund XX,
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
XX owns an interest in the Premises, only Fund XX may obligate
Xxxxxxx with respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XX 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 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 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 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 Xxxxxxx'x
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.
Xxxxxxx has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $1,680 for the expenses, direct and indirect, incurred by Fund
XX 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 XX 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 XX pursuant to Section 1
hereof. Fund XX 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.
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
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, Xxxxxxx shall be
entitled to receive 13.7365% 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.
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
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
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 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
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 Xxxxx:
Xxxxxx Xxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to Maricopa:
Xx. X.X. Xxxxxx, President
Maricopa Land & Cattle Company, Inc.
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, 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
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
REST OF PAGE INTENTIONALLY LEFT BLANK
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Xxxxx X. Xxxxxxx
By:/s/ Xxxxx X Xxxxxxx
Xxxxx X. Xxxxxxx
WITNESS:
/s/ Xxxxxxxx X Xxxxxxx
Xxxxxxxx X Xxxxxxx
(Print Name)
STATE OF MINNESOTA)
) ss
COUNTY OF ISANTI)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 29th day of
November, 2000, Xxxxx X. Xxxxxxx, who executed the foregoing
instrument in said capacity.
/s/ Xxxxxx X Xxxxxx
Notary Public
[notary seal]
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By:/s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
WITNESS:
/s/ Xxxx Xxxxxxx
Xxxx 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 30 day of November,
2000, Xxxxxx X. Xxxxxxx, President 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
Buyer Initial: /s/ SS
Purchase Agreement for Champps Americana Restaurant -
Columbus, OH (Easton)
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.
