Amendment to Co-Tenancy Agreement
Change in Percentage Interest
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant
Livonia, Michigan
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 1st day of October, 2001, by and
between AEI Income & Growth Fund XXI Limited Partnership
(hereinafter called "Co-Tenancy Manager"), and Xxxxxxxx X. Xxxxxx
as trustee of the Xxxxxxxx X. Xxxxxx Family Trust, dated May 15,
1992 (hereinafter called "Hossom"). (Hossom, Co-Tenancy Manager
(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, AEI Income & Growth Fund XXI Limited Partnership
presently owns an undivided 87.5609% interest in and to the land,
and Hossom presently owns an undivided 4.2226% interest in and
to, and Xxxxx X. Xxxxxx as trustee of the Xxxxx X. Xxxxxx Family
Trust dated May 15, 1992 presently owns an undivided 4.6600%
interest in and to, and Xxxxxxxxx X. Xxx Living Trust, dated
11/13/89 presently owns an undivided 3.5565% interest in and to
the land situated in the City of Livonia, County of Xxxxx, and
State of Michigan, (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
monitoring of performance by the present tenant of the Premises
under the triple net lease agreement for the Premises; if
necessary, upon a vacancy in the Premises, the operation and
management of the Premises; the continued leasing of space within
the Premises; and, the distribution of income from and the pro-
rata sharing in expenses of the Premises by Co-Tenancy Manager in
connection with Hossom's interest in the Premises.
NOW THEREFORE, in consideration of the purchase by Hossom 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. Hossom, subject to the limitations and power of revocation
herein expressed, hereby designates Co-Tenancy Manager as its
sole and exclusive agent and delegates to Co-Tenancy Manager the
sole right to monitor and enforce on behalf of Hossom the terms
of the present lease of the Premises, including but not limited
to any amendments, consents to assignment, sublet, releases or
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
modifications to the lease or guarantees of lease and to deal
with any property agent or tenant. Should the Premises become
vacant, the operation and management of the Premises, is
delegated by the Co-Tenants, subject to revocation on an
individual basis by an individual Co-Tenant as otherwise set
forth herein, to Co-Tenancy Manager, or its designated agent,
successors or assigns. Provided, however, if Co-Tenancy Manager
shall sell all of its interest in the Premises, (or shall no
longer be delegated the operation and management of the
Premises), the duties and obligations of Co-Tenancy Manager
respecting management of the Premises as set forth herein,
including but not limited to its duties and obligations
respecting paragraphs 2, 3, and 4 hereof, shall be exercised by
the holder or holders of a majority undivided co-tenancy
interests in the Premises. Subject to the approval of all Co-
Tenants evidenced by their written consent, Co-Tenancy Manager
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, may incur ordinary and
necessary operating expenses in connection with the management of
the Premises, and propose extraordinary or capital expenditures
to the Premises. Until Hossom shall revoke such authority as
provided herein, Co-Tenancy Manager or Hossom itself may obligate
Hossom with respect to any ordinary and necessary operating
expense for the Premises. However, Co-Tenancy Manager has no
right to obtain a loan for which any other Co-Tenant would be
liable, nor may Co-Tenancy Manager finance or refinance the
Premises by secured by any lien or any pledge of the Premises.
Hossom agrees to execute and deliver to Co-Tenancy Manager such
written approval of documents approved by Hossom, such approval
to take such form as may be reasonably required by Co-Tenancy
Manager to evidence its authority to sign approved documents on
behalf of Hossom.
As further set forth in paragraph 2 hereof, Co-Tenancy Manager
agrees to require any lessee of the Premises to name Hossom as an
insured or additional insured in all insurance policies provided
for, or contemplated by, any lease on the Premises. Co-Tenancy
Manager 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, Co-Tenancy Manager
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. Co-Tenancy Manager
may offset against, pay to itself and deduct from any payment due
to Hossom under this Agreement, and may pay to itself the amount
of Hossom's share of any reasonable expenses of the Premises
which are not paid by Hossom to Co-Tenancy Manager or its
assigns, within ten (10) days after demand by Co-Tenancy Manager.
In the event there is insufficient operating income from which to
deduct Hossom's unpaid share of operating expenses, Co-Tenancy
Manager 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
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
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.
Hossom has no requirement to, but has, nonetheless elected to
retain, and agrees to annually compensate, Co-Tenancy Manager in
the amount of $681 for the expenses, direct and indirect,
incurred by Co-Tenancy Manager in providing Hossom with quarterly
accounting and distributions of Hossom's share of net income and
for tracking, reporting and assessing the calculation of Hossom's
share of operating expenses incurred from the Premises. This
invoice amount shall be pro-rated for partial years and Hossom
authorizes Co-Tenancy Manager to deduct such amount from Hossom's
share of revenue from the Premises. Hossom 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; Co-Tenancy Manager may
terminate its obligation under this paragraph upon 30 days
written notice to Hossom 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 Co-
Tenancy Manager '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, Co-
Tenancy Manager 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, Hossom shall be entitled to receive 4.2226% 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 Co-Tenancy Manager
shall, within fifteen (15) business days after receipt of notice,
make payment to Co-Tenancy Manager 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. All Co-Tenants shall have the
right to review all contracts that will have a material effect on
the Premises. All Co-Tenants shall have the right to approve
budgets and major capital expenditures affecting the Premises.
While Co-Tenancy Manager shall own an interest in the Premises,
Co-Tenants agree to delegate the determination of such budgets
and need for capital expenditures to Co-Tenancy Manager subject
to the power of any Co-Tenant to revoke such delegation in
accordance with the provisions hereof.
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
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, and shall not create any lien upon
their individual interest if by operation of law such lien shall
by law extend to the interest of 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 Hossom 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. Any Co-Tenant may, at any time effective upon
written notice to Co-Tenancy Manager revoke the designation of Co-
Tenancy Manager as such Co-Tenant's agent for the purposes as set
forth herein. Any Co-Tenant revoking such designation of Co-
Tenancy Manager's agency shall notify Co-Tenancy Manager in
writing in accordance with the terms hereof and such revocation
shall be effective upon Co-Tenancy Manager's receipt of such
written revocation.
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 AEI Income & Growth Fund XXI Limited Partnership:
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
If to Hossom:
Xxxxxxxx X. Xxxxxx as trustee of the
Xxxxxxxx X. Xxxxxx Family Trust,
dated May 15, 1992
00000 Xxxxxxx Xxxx
Xxx, 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. Any Co-Tenant
selling or transferring all or a portion of its interest in the
Premises shall provide, within a reasonable time after the
completion of such sale or transfer, written notice to all other
Co-Tenants of the name and address of such new Co-Tenant and the
interest held by such new Co-Tenant. Upon written request from Co-
Tenancy Manager from time to time at reasonable intervals, Co-
Tenant shall provide a current Affidavit of Trustee or
Certificate of Trustee verifying the name and address of the
current trustee(s) empowered to transfer interests in the
Premises owned by Co-Tenant.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them; no Co-
Tenant shall file any partnership tax returns nor otherwise take
any action respecting nor represent the relationship among the Co-
Tenants as other than co-tenants of undivided interests in real
property. 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. To the extent that this agreement binds all Co-Tenants of
the Premises, such covenants are deemed to run with the land and
shall be evidenced in a Co-Tenancy Agreement entered into by any
Co-Tenant with any purchaser of all or any portion of its
interest in the Premises. Except as otherwise provided or
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
modified herein, Co-Tenants retain all rights otherwise available
under law to any Co-Tenant of an interest in Real Property.
13. Every Co-Tenant, shall have a right of first refusal to
purchase the interest of any other Co-Tenant in the Premises,
upon the following limited terms and conditions. If and only
when a Co-Tenant shall give written notice to another Co-Tenant
(and only as to such Co-Tenant receiving such notice) of a desire
to be notified of any proposed sale "Notice of Desire to
Purchase"), Co-Tenants desiring notice of proposed sales of Co-
Tenancy interests shall receive notice of proposed sales of the
interest of the Co-Tenant who has received a Notice of Desire to
Purchase. Any Co-Tenant offering its interest or any portion
thereof for sale ("Selling Co-Tenant") shall first notify all Co-
Tenants who have provided a Notice of Desire to Purchase. Such
notice ("Selling Co-Tenant's Notice") shall give Selling Co-
Tenant's name and address and state a price at which Selling Co-
Tenant intends to sell and will sell a specified portion or all
of its interest in the fee simple to the Leased Premises.
If a Co-Tenant shall fail to exercise its Right of First Refusal
as set forth herein, those Co-Tenant's exercising their Right of
First Refusal shall buy all, but not less than all, of the
interest in the Premises offered for sale by the Selling Co-
Tenant, purchasing prorata in proportion that the purchasing Co-
Tenant's interests in the Premises shall bear to one another.
For ten (10) business days (the "Right of First Refusal Period")
following the giving of such notice, a Co-Tenant shall have the
option to purchase such portion of the fee interest of the
Selling Co-Tenant as set forth in Selling Co-Tenant's Notice at
the price in cash stated in the Selling Co-Tenant's Notice. A
written notice addressed to Selling Co-Tenant and signed by the
purchasing Co-Tenant shall be given, in accordance with the
provisions hereof respecting the giving of notice, within the
period set forth above for exercising the Right of First Refusal.
If no Co-Tenant shall exercise its Right of First Refusal,
Selling Co-Tenant shall be free to market its interest in the
Premises after expiration of the Right of First Refusal Period
and shall be free to sell all or any portion of its interest in
the Premises at a price prorata greater than, or equal to, that
which is set forth in the Selling Co-Tenant's Notice.
The above provisions shall not apply to the sale or transfer of a
Co-Tenant's interest in the Premises if such sale or transfer
shall be to an affiliate of the selling or transferring Co-Tenant
or to a trust established by such Co-Tenant for estate planning
purposes.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Xxxxxxxx X. Xxxxxx Family Trust, dated May 15, 1992
By: /s/ Xxxxxxxx X Xxxxxx as Trustee
Xxxxxxxx X. Xxxxxx as trustee
Address: 00000 Xxxxxxx Xxxx
Xxx, XX 00000
STATE OF WA)
) ss
COUNTY OF SKAGIT)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 31 day of August,
2001, Xxxxxxxx X. Xxxxxx as trustee of the Xxxxxxxx X. Xxxxxx
Family Trust, dated May 15, 1992, who executed the foregoing
instrument in said capacity.
/s/ Xxxx Xxxxxxxx
[notary seal] Notary Public
WITNESS 1: WITNESS 2:
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X Xxxxxxx
(Print Name & Address below) (Print Name & Address below)
Xxxx Xxxxxx Xxxxxx X Xxxxxxx
00000 Xxxxxxx Xxxx 000 Xxxxxxxxx Xxxxx
Xxx, XX 00000 Xxxxxxxxxx, XX 00000
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
AEI Income & Growth Fund XXI Limited Partnership by
AEI Fund Management XXI, Inc.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
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 1st day of October,
2001, Xxxxxx X. Xxxxxxx, President of AEI Fund Management XXI,
Inc., the corporate general partner of AEI Income & Growth Fund
XXI Limited Partnership, who executed the foregoing instrument in
said capacity and on behalf of the corporation.
/s/ Xxxxx X Xxxxxx
[notary seal] Notary Public
WITNESS 1: WITNESS 2:
By: /s/ Xxxxx X Xxxxxx By: /s/ Xxxxxxxxxx X Xxxx
(Print Name & Address below) (Print Name & Address below)
Xxxxx X Xxxxxx Xxxxxxxxxx X Xxxx
00 X 0xx X 00 X 0xx Xx #0000
Xx. Xxxx, XX 00000 Xx. Xxxx, XX 00000
The name of the party who drafted this document is:
AEI Fund Management, Inc., 0000 Xxxxx Xxxxx Xxxxxx, 00 Xxxx
Xxxxxxx Xxxxxx, Xx. Xxxx, XX 00000
000-000-0000
Co-Tenant Initial: /s/ SLH
Co-Tenancy Agreement for Champps Americana Restaurant, Livonia, MI
EXHIBIT "A"
Unit 3, Pentagon Centre Condominium, according to the Master Deed
recorded in Liber 29370, Page 706 through 7661/2, both inclusive,
as amended by First Amendment to the Master Deed recorded in
Liver 29631, Pages 1995 through 2003, both inclusive, as amended
by Second Amendment to the Master Deed recorded in Liber 29696,
Pages 571 through 577, both inclusive, as amended by Third
Amendment to the Master Deed recorded in Liber 29805, Pages 766
through 767, both inclusive, and as amended by Fourth Amendment
to the Master Deed recorded in Liber 31338, Pages 1 through 4,
both inclusive, Xxxxx County Records, and designated as Xxxxx
County Condominium Subdivision Plan No. 437, together with rights
in general common elements and limited common elements, as set
forth in the above Master Deed and as described in Act 229 of the
Public Acts of 1963, and Act 59 of the Public Acts of 1978, as
amended.
19470 Xxxxxxxx
Tax I.D. No. 46-023-01-0003-000
