PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant - Columbus, OH (Easton)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 19th day of January, 2001, by and
between The Xxxxxx X. Nate Revocable Living Trust dated 11/29/96,
Xxxxxx X. Nate, Trustee and Xxxxxx X. Nate, Trustee, (hereinafter
called "Nate"), and AEI Net Lease Income & Growth Fund XX Limited
Partnership (hereinafter called "Fund XX") (Nate, 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 47.0573% interest in
and to, and 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 Nate'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 Nate 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
Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy Agreement for Champps Americana Restaurant-
Columbus, OH (Easton)
management matters of the property comprising the Premises,
including but not limited to the management of the net lease
agreement for the Premises. Nate, subject to the limitations
and powers of revocation herein expressed, hereby designates
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 Nate 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 Nate evidenced by Nate'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 Nate shall revoke such authority as provided
herein, Fund XX or Nate may obligate Nate 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. Nate agrees to execute and deliver to Fund XX
such written approval of documents approved by Nate, such
approval to take such form as may reasonably required by Fund
XX to evidence its authority to sign approved documents on
behalf of Nate.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any lessee of the Premises to name Slogan 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 Nate
under this Agreement, and may pay to itself the amount of Nate's
share of any reasonable expenses of the Premises which are not
paid by Nate 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 Nate'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.
Nate 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 Nate with quarterly accounting and
distributions of Nate's share of net income and for tracking,
reporting and assessing the calculation of Nate's share of
operating
Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy Agreement for Champps Americana Restaurant-
Columbus, OH (Easton)
expenses incurred from the Premises. This invoice amount shall be
pro-rated for partial years and Nate authorizes Fund XX to deduct
such amount from Nate's share of revenue from the Premises. Nate
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 Nate 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, Nate 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.
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
Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy Agreement for Champps Americana Restaurant-
Columbus, OH (Easton)
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 Nate:
Xxxxxx X. Nate, Trustee
Xxxxxx X. Nate, Trustee
000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Xxxxx:
Xxxxxxx X. Xxxxx and Xxxxxx Xxx Xxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxx:
Xxxxx X. Xxxxxx and Xxxxxxxx Xxxxxx
0000 X Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy Agreement for Champps Americana Restaurant-
Columbus, OH (Easton)
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 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.
Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy Agreement for Champps Americana Restaurant-
Columbus, OH (Easton)
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.
12. Nate may, at any time effective upon written notice to Fund
XX, revoke the designation of Fund XX as Nate'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, Nate 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.
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Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy 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.
Nate The Xxxxxx X. Nate Revocable Living Trust dated 11/29/96
By:/s/ Xxxxxx L Nate Trustee
Xxxxxx X. Nate, Trustee
By: /s/ Xxxxxx K Nate Trustee
Xxxxxx X. Nate, Trustee
WITNESS:
/s/ Xxxxx X Xxxxxxxxx
Xxxxx X Xxxxxxxxx
(Print Name)
STATE OF INDIANA)
) ss
COUNTY OF ST. XXXXXX)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 15th day of January,
2001, The Xxxxxx X. Nate Revocable Living Trust dated 11/29/96,
Xxxxxx X. Nate, Trustee and Xxxxxx X. Nate, Trustee, who executed
the foregoing instrument in said capacity.
/s/ Xxxxx X Xxxxxxxxx
Notary Public
[notary seal]
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Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy 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 19 day of January,
2001, 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
[notary seal]
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Co-Tenant Initial: /s/ TLN /s/ SKN
Co-tenancy 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.
