PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Children's World - DePere, WI)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30th day of March, 2000, by and
between Carl R. Whittington, Trustee of the Carl R. Whittington
Trust dated October 16, 1996 (hereinafter called "Whittington")
and AEI Income & Growth Fund XXII Limited Partnership
(hereinafter called "Fund XXII") (Whittington, Fund XXII (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 XXII presently owns an undivided 51.2537% interest
in and to, and Whittington presently owns an undivided 14.8036%
interest in and to, George M. Kunitake and Kay H. Kunitake,
husband and wife as joint tenants, and Steven T. Kunitake, a
married man as his sole and separate property, all as joint
tenants presently own an undivided 16.7323% interest in and to,
and D & R Family Limited Partnership presently owns an undivided
17.2104% in and to the land situated in the City of DePere,
County of Brown and State of WI, (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 Whittington's
interest by Fund XXII; 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 Whittington 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 XXII, or its designated agent, successors or
assigns. Provided, however, if Fund XXII shall sell all of its
interest in the Premises, the duties and obligations of Fund XXII
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 XXII 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 XXII as their sole and
exclusive agent to deal with, and Fund XXII retains the sole
right to deal with, any property agent or tenant and to monitor,
execute and enforce the terms of leases of
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
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 Whittington. As long as
Fund XXII owns an interest in the Premises, only Fund XXII may
obligate Whittington with respect to any expense for the
Premises.
As further set forth in paragraph 2 hereof, Fund XXII agrees to
require any lessee of the Premises to name Whittington as an
insured or additional insured in all insurance policies provided
for, or contemplated by, any lease on the Premises. Fund XXII
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 XXII 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 XXII may offset
against, pay to itself and deduct from any payment due to
Whittington under this Agreement, and may pay to itself the
amount of Whittington's share of any legitimate expenses of the
Premises which are not paid by Whittington to Fund XXII or its
assigns, within ten (10) days after demand by Fund XXII. In the
event there is insufficient operating income from which to deduct
Whittington's unpaid share of operating expenses, Fund XXII 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.
Whittington has no requirement to, but has, nonetheless elected
to retain, and agrees to annually reimburse, Fund XXII in the
amount of $550 for the expenses, direct and indirect,
incurred by Fund XXII in providing Whittington with
quarterly accounting and distributions of Whittington's
share of net income and for tracking, reporting and assessing the
calculation of Whittington's share of operating expenses incurred
from the Premises. This invoice amount shall be pro-rated for
partial years and Whittington authorizes Fund XXII to deduct such
amount from Whittington 's share of revenue from the Premises.
Whittington 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 XXII pursuant to Section 1 hereof. Fund
XXII may terminate its obligation under this paragraph upon 30
days notice to Whittington 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 XXII's principal office, and each Co-Tenant shall have
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
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
XXII 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, Whittington shall be entitled to receive 14.8036%
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 XXII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XXII 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 July 14,
2029 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 deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
If to Fund XXII:
AEI Income & Growth Fund XXII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Whittington:
Carl R. Whittington, Trustee
1440 Elm Grove Avenue
Akron, OH 44312
If to Kunitake:
George M. and Kay H. Kunitake
Steven T. Kunitake
153 Exeter
San Carlos, CA 94070
If to D & R:
Robert DeKlotz, Partner
D & R Family Limited Partnership
1760 E. North Hills Drive
LaHabra, CA 90631
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,
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
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 INTENTIONNALLY LEFT BLANK
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Whittington: Carl R. Whittington, Trustee of the Carl R.
Whittington Trust dated October 16, 1996
By: /s/ Carl R Whittington Trustee
Carl R. Whittington, Trustee
WITNESS
/s/ Stella Ford
Stella Ford
(Print Name)
State of Ohio)
) ss.
County of Summit)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 27 day of March,
2000, Carl R. Whittington, Trustee of the Carl R. Whittington
Trust dated October 16, 1996, who executed the foregoing
instrument in said capacity.
/s/ Marilyn Dodson
Notary Public
[notary seal]
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
Fund XXII: AEI Income & Growth Fund XXII Limited Partnership
By: AEI Fund Management XXI, Inc., its corporate general
partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Jill Rayburn
Jill Rayburn
(Print Name)
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of March,
2000, Robert P. Johnson, President of AEI Fund Management XXI
Inc., corporate general partner of AEI Income & Growth Fund XXII
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/ Barbara J Kochevar
Notary Public
[notary seal]
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Children's World, DePere, WI
EXHIBIT "A"
LEGAL DESCRIPTION
All of Lot One (1) of Volumnet 34 Certified Survey
Maps, Page 125, Brown County Records, and is located in
part of Government Lots 1 and 2, Section Thirty-five
(35) and part of Government Lot 1 and part of the
Southeast One-quarter of the Northeast, One-quarter (SE
1/4 - NE 1/4), Section Thirty-four (34), all being in
Township Twenty-three (23) North, Range Twenty (20)
East, in the Town of Ledgeview, Brown County,
Wisconsin.
and
Part of Lot One (1) of Volume 30 Certified Survey
Maps, Page 71, Brown County Records, being part of
Government Lots 1 and 2, Section Thirty-five (35),
Township Twenty-three (23) North, Range Twenty (20)
East, in the Town of Ledgeview, Brown County,
Wisconsin, more fully described as follows:
Commencing at the West 1/4 corner, Section 35,
T23N, R20E; thence N01 36' 23" West, 1763.33 feet along
the West line of said Section 35, to the South right-of-
way of Heritage Road, also known as C.T.H. "X"'; thence
N89 02'44" East, 82.54 feet along said right-of-way to
the point of beginning; thence N89 02'44" East 53.61
feet along said right-of-way; thence 167.98 feet along
said right-of-way, being the arc of a 1095.92 foot
radius curve to the right, whose long chord bears S86
33'48" East, 167.82 feet; thence S1 36' 23" East,
539.93 feet along the East line of Lot 1, Volume 30
Certified Survey Maps, Page 71, Brown County Records,
to the North right-of-way of Swan Road; thence S88 33'
16" West, 220.77 feet along said right-of-way; thence N
1 36' 23" West, 554.67 feet along the East line of Lot
1, Volume 34 Certified Survey Maps, Page 125, Brown
County Records, to the point of beginning.
Tax Parcel No. D-50-1 and D-84-1
Arcadian Lane/Heritage Road
De Pere, WI 54115