PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Champps Americana Restaurant
Schaumburg, Illinois
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 15th day of February, 2002, by
and between Xxxxxxx X. Xxxx (hereinafter called "Kung"), and AEI
Net Lease Income & Growth Fund XX Limited Partnership
(hereinafter called "Fund XX") (Kung, 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 34.1366% interest in
and to, and Kung presently owns an undivided 3.7856% interest in
and to, and The Xxxxxxxx X. Xxxxxx Trust dated August 21, 2000,
Xxxxxxxx X. Xxxxxx, trustee presently owns an undivided 3.9077%
interest in and to, and Xxxxxxx Xxxxxx Xxxxx Properties, L.C.,
Xxxxxxx X. Xxxxx, managing member presently owns an undivided
3.3313% 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 12.3951%
interest in and to, and The Xxxxx/Do Family Living Trust dated
8/19/97, Xxxxxx Xxxxx and Xxxxx Do, Trustors and/or Trustees
presently owns an undivided 3.1261% interest in and to, and
Munkberg Farms, Inc. presently owns an undivided 3.9077% interest
in and to, and The White Family Living Trust dated August 5, 1996
Xxxxx Xxxx White and Xxxx Xxx Xxxxx, Trustors and/or Trustees
presently owns an undivided 3.3919% interest in and to, and
Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx, Trustees, or their
successors in trust, under the Xxxxxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxxx Community Trust dated June 2, 1994, and any amendments
thereto presently owns an undivided 2.5009% interest in and to,
and Xxxxx Xxxxx Xxxxxxxxxxx, trustee under the trust created by
the and Xxxxx Xxxxx Xxxxxxxxxxx, trustee under the trust created
by the will dated June 5, 1964 of Louis Xxxxxxx Xxxxxxxxx,
deceased, presently owns an undivided 3.3434% interest in and to,
and Xxxxxxx X. Xxxx presently owns an undivided 3.3762% interest
in and to, and Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx,
Trustees, or their successors in trust, under the Xxxxxxx X. and
Xxxxxx X. Xxxxxxxx Community Trust dated June 2, 1994 presently
own an undivided 3.1261% interest in and to, and Xxxx Xxxxxxx,
Trustee of the Xxxx Xxxxxxx Revocable Trust dated 5/26/92
presently owns an undivided 2.9495% interest in and to, and
Garden Ridge Development LLC presently owns an undivided 5.1125%
interest in and to, and Xxxxxx Xxxxx, Trustee of the Xxxxxx Xxxxx
Living Trust dated December 21, 1990 presently owns an undivided
4.5305% interest in and to, and Xxxxx XxXxx presently owns an
undivided 3.9327% interest in and to, and Maricopa Land & Cattle
Company, Inc. presently owns an undivided 3.1462% interest in and
to the land, situated in the City of Schaumburg, County of Xxxx,
and State of Illinois, (legally described upon Exhibit A attached
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
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 Kung'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 Kung 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. Kung
hereto 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 negotiate and enter into, on
terms and provisions satisfactory to Fund XX, and to 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 Kung. As long as Fund XX owns an interest in the
Premises, only Fund XX may obligate Kung 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 Kung 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 Kung
under this Agreement, and may pay to itself the amount of Kung's
share of any reasonable expenses of the Premises which are not
paid by Kung to Fund XX or its assigns, within ten (10) days
after demand by Fund XX. In the event there is insufficient
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
operating income from which to deduct Kung'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,
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.
Kung has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $678 for the expenses, direct and indirect, incurred by Fund
XX in providing Kung with quarterly accounting and distributions
of Kung's share of net income and for tracking, reporting and
assessing the calculation of Kung's share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and Kung authorizes Fund XX to deduct
such amount from Kung's share of revenue from the Premises. Kung
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 Kung 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, Kung shall be entitled
to receive 3.7856% 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 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.
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
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 December
31, 2027 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 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 Kung:
Xxxxxxx X. Xxxx
x/x Xxxxxxxx Xxxxxxxxxx Xxxxxxxxxxx
0xx Xxxxx
Xx. 00 Xxxxx Xx Xxxx Xxxx, Xxxxxxx 0
Xxxxxx 000, Xxxxxx R.O.C.
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
If to Struif:
The Xxxxxxxx X. Xxxxxx Trust dated August 21, 2000
Xxxxxxxx X. Xxxxxx, trustee
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
If to Mayne:
Xxxxxxx Xxxxxx Xxxxx Properties, L.C.
Xxxxxxx X. Xxxxx, managing member
0000 Xxxxxxxxx Xxxx
Xxxx Xxxx, 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 Xxxxx-Do:
The Xxxxx/Do Family Living Trust dated 8/19/97,
Xxxxxx Xxxxx, and Xxxxx Do, Trustors and/or Trustees
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxx XX 00000
If to Munkberg:
Munkberg Farms, Inc., a Minnesota corporation
Xxxx Xxxxxxxx, President
0000 000xx Xxx. XX
Xxxxxxxxx, XX 00000
If to: White
The White Family Living Trust dated August 5, 1996
Xxxxx Xxxx White and Xxxx Xxx Xxxxx, Trustors and/or Trustees
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
If to Xxxxxxxx:
Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx, Trustees, or their
Successors in trust, under the Xxxxxxx X. and Xxxxxx X. Xxxxxxxx
Community Trust, dated June 2, 1994
0000 X Xxxx Xxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
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 Rush:
Xxxxxxx X. Xxxx
0000 Xxxx 000xx Xxxxxx
Xxxxx Xxxx, XX 00000
If to Xxxxxxxx:
Xxxxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxxxxxx, Trustees,
or their successors in trust,
under the Xxxxxxx X. and Xxxxxx X. Xxxxxxxx
Community Trust dated June 2, 1994
0000 X Xxxx Xxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
If to Xxxxxxx:
Xxxx Xxxxxxx, Trustee of the
Xxxx Xxxxxxx Revocable Trust dated 5/26/92
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
If to Garden Ridge:
Garden Ridge Development LLC
Xxxxx Xxxxxxxxx, Chief Financial Manager
0000 X 000xx Xxxxxx
Xxxxxxxxx, XX 00000
If to Xxxxx:
Xxxxxx Xxxxx, Trustee of the
Xxxxxx Xxxxx Living Trust dated December 21, 1990
0000 Xxxxxx Xx Xxxxx
Xxxxxxxx, XX 00000
If to XxXxx:
Xxxxx XxXxx
0 Xxxxxxx Xxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
If to Maricopa:
Maricopa Land & Cattle Company, Inc.
Xx. X.X. Xxxxxx, President
0000 X. 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.
Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
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.
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Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Xxxxxxx X. Xxxx
By: /s/ Xxxxxxx X Xxxx
Xxxxxxx X. Xxxx
WITNESS:
/s/ I-Xxx Xxxx
I-Xxx Xxxx
(Print Name)
STATE OF ) Taiwan
) ss City of Taipei
COUNTY OF ) American Institue in
Taiwan, Taipei Office
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 22nd day of January,
2002, Xxxxxxx X. Xxxx, who executed the foregoing instrument in
said capacity.
/s/ Xxxxx X Xxxx
Notary Public
[notary seal]
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Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
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/ Xxxxxx X Xxxxx
Xxxxxx X Xxxxx
(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 15th day of
February, 2002, Xxxxxx X. Xxxxxxx, President of AEI Fund
Management XX, Inc., corporate general partner of AEI 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/ Xxxxx X Xxxxxx
Notary Public
[notary seal]
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Co-Tenant Initial: /s/ SSK
Co-Tenancy Agreement for Champps Americana Restaurant-Schaumburg, IL
EXHIBIT "A"
Legal Description
Parcel 1
Lot 2 in American-Commons Subdivision, a
Resubdivision of Lots 1 and 2 in Xxxxxxxx'x Woodfield Common
West, a subdivision of part of the Northeast quarter of
Section 14, Township 41 North, Range 10 East of the Third
Principal Meridian, in Xxxx County, Illinois.
Parcel 2
Non-exclusive easement for ingress, egress, and
parking as established by reciprocal easement agreement made
by Chi-Chi's, Inc., a Minnesota corporation and Xxx Evan
Farm, Inc., and Ohio corporation, dated May 10, 1983, and
recorded May 13, 1983, as Document 26604303.
