PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant
Livonia, Michigan
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 7th day of November, 2001, by and
between AEI Income & Growth Fund XXI Limited Partnership
(hereinafter called "Co-Tenancy Manager"), and Xxxxx Xxxxx
Xxxxxxxxxxx, trustee under the trust created by the will dated
June 5, 1964 of Louis Xxxxxxx Xxxxxxxxx, deceased (hereinafter
called "Xxxxxxxxxxx"). (Xxxxxxxxxxx, 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 78.5629% interest in and to, and
Xxxxxxxxxxx presently owns an undivided 5.5769% interest in and
to, and Xxxxxxx X. Xxx-Xxxxxx, Trustee of the First Amended and
Restated Trust Agreement of Xxxxxxx X. Xxx-Xxxxxx dated July 8,
1992 presently owns an undivided 3.4211% interest in and to, and
Xxxxxxxx X. Xxxxxx as Trustee of the Xxxxxxxx X. Xxxxxx Family
Trust dated May 15, 1992 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, Xxxxxxxxx X. Xxx, trustee 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 Xxxxxxxxxxx'x interest in the Premises.
NOW THEREFORE, in consideration of the purchase by Xxxxxxxxxxx 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:
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
1. Xxxxxxxxxxx, 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
Xxxxxxxxxxx the terms of the present lease of the Premises,
including but not limited to any amendments, consents to
assignment, sublet, releases or 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 Xxxxxxxxxxx shall revoke such authority as
provided herein, Co-Tenancy Manager or Xxxxxxxxxxx itself may
obligate Xxxxxxxxxxx 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.
Xxxxxxxxxxx agrees to execute and deliver to Co-Tenancy Manager
such written approval of documents approved by Xxxxxxxxxxx, 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 Xxxxxxxxxxx.
As further set forth in paragraph 2 hereof, Co-Tenancy Manager
agrees to require any lessee of the Premises to name Xxxxxxxxxxx
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 Xxxxxxxxxxx under this Agreement, and may pay to itself the
amount of Xxxxxxxxxxx'x share of any reasonable expenses of the
Premises which are not paid by Xxxxxxxxxxx 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
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
from which to deduct Xxxxxxxxxxx'x 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
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.
Xxxxxxxxxxx has no requirement to, but has, nonetheless elected
to retain, and agrees to annually compensate, Co-Tenancy Manager
in the amount of $899 for the expenses, direct and indirect,
incurred by Co-Tenancy Manager in providing Xxxxxxxxxxx with
quarterly accounting and distributions of Xxxxxxxxxxx'x share of
net income and for tracking, reporting and assessing the
calculation of Xxxxxxxxxxx'x share of operating expenses incurred
from the Premises. This invoice amount shall be pro-rated for
partial years and Xxxxxxxxxxx authorizes Co-Tenancy Manager to
deduct such amount from Xxxxxxxxxxx'x share of revenue from the
Premises. Xxxxxxxxxxx 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 Xxxxxxxxxxx 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, Xxxxxxxxxxx shall be entitled to receive 5.5769% 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.
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
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.
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 May 31,
2018 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/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
If to Xxxxxxxxxxx:
Xxxxx Xxxxx Xxxxxxxxxxx, trustee under the trust created by
the will dated June 5, 1964 of Louis Xxxxxxx Xxxxxxxxx,
deceased
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
If to Xxx-Xxxxxx:
Xxxxxxx X. Xxx-Xxxxxx, Trustee of the
First Amended and Restated Trust Agreement of
Xxxxxxx X. Xxx-Xxxxxx, dated July 8, 1992
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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
If to Xxxxxx:
Xxxxx X. Xxxxxx as trustee of the
Xxxxx X. Xxxxxx Family Trust,
dated May 15, 1992
0000 Xxxxx Xx Xxxxxx
Xxxx Xxxxx, XX 00000
If to Xxx:
Xxxxxxxxx X. Xxx Living Trust,
dated 11/13/89
0000 Xxx Xxxx Xxxx
Xxxxxxxxxx Xxxxxxxx, 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
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
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
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.
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
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/ DLC
Co-Tenancy Agreement for Champps, 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.
The trust created by the will dated June 5, 1964 of
Louis Xxxxxxx Xxxxxxxxx, deceased
By: /s/ Xxxxx Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxx Xxxxxxxxxxx, trustee
Address: 0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
STATE OF CALIFORNIA)
) ss
COUNTY OF TULARE)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 16th day of October,
2001, Xxxxx Xxxxx Xxxxxxxxxxx, trustee under the trust created by
the will dated June 5, 1964 of Louis Xxxxxxx Xxxxxxxxx, deceased,
who executed the foregoing instrument in said capacity.
/s/ Xxxxxxxx X. Xxxxxx
Notary Public
[notary seal]
WITNESS 1: WITNESS 2:
By: /s/ Xxxxxxxx X Xxxxxx By: /s/ Xxxx Xxxxx
(Print Name & Address below) (Print Name & Address below)
Xxxxxxxx X Xxxxxx Xxxx Xxxxx
0000 X Xxxxxx Xxxxxxx, XX 0000 X Xxxxxx Xxxxxxx, XX
00000
Co-Tenant Initial: /s/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
AEI Income & Growth Fund XXI Limited Partnership by
AEI Fund Management XXI, Inc., its corporate general
partner
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 7th day of November,
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 Public
[notary seal]
WITNESS 1: WITNESS 2:
By: /s/ Xxxxx X Xxxxxx By: /s/ Xxxxxx X Xxxxx
(Print Name & Address below) (Print Name & Address below)
Xxxxx X Xxxxxx 1300 WTC
0000 Xxxxx Xxxxx Xxxxxx Xx. Xxxx XX 00000
30 X 0xx Xx Xxxxxx X Xxxxx
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/ DLC
Co-Tenancy Agreement for Champps, Livonia, MI
EXHIBIT "A"
Unit 3, Pentagon Centre Condominium, according to the Master
Deed recorded in Liber 29370, Pages 706 through 766 1/2,
both inclusive, as amended by First Amendment to the Master
Deed recorded in Liber 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
