PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Destin, FL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30th day of Dec, 1996, by and
between Xxxx Xxxxxx and Xxxxx Xxxxxx, Trustees of the Xxxx Xxxxxx
and Xxxxx Xxxxxx Trust dated June 11, 1987, (hereinafter called
"Pasini"), and AEI Real Estate Fund XVIII Limited Partnership
(hereinafter called "Fund XVIII") (Pasini, Fund XVIII (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 XVIII presently owns an undivided 69.2373% interest
in and to, and Xxxxxx Xxxxxxxxx presently owns and undivided
7.0591% interest in and to and Xxxx X. Xxxx and Xxxxxxxx Xxxxxx
Xxxx presently own an undivided 11.0814% interest in and to, and
Pasini presently owns an undivided 12.6222% interest in and to
the land, situated in the City of Destin, County of Xxxxxx, and
State of Florida, (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 Pasini's interest by
Fund XVIII; 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 Pasini 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with any property agent and to execute
leases of space within the Premises, including but not limited to
any amendments, consents to assignment, sublet, releases or
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
modifications to leases or guarantees of lease or easements
affecting the Premises, on behalf of Pasini. Only Fund XVIII may
obligate Pasini with respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XVIII
agrees to require any Tenant of the Premises to name Pasini as an
insured or additional insured in all insurance policies provided
for, or contemplated by, any lease on the Premises. Fund XVIII
shall use its best efforts to obtain endorsements adding Co-
Tenants to said policies from Tenant within 30 days of
commencement of this agreement. In any event, Fund XVIII 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 XVIII may offset
against, pay to itself and deduct from any payment due to Pasini
under this Agreement, and may pay to itself the amount of
Pasini's share of any legitimate expenses of the Premises which
are not paid by Pasini to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Pasini's
unpaid share of operating expenses, Fund XVIII 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 Entire Property.
Pasini has elected to retain, and agrees to annually reimburse,
Fund XVIII in the amount of $635 for the expenses, direct and
indirect, incurred by Fund XVIII in providing quarterly
accounting and distributions of Pasini's share of net income and
for tracking, reporting and assessing the calculation of Pasini's
share of operating expenses incurred from the Premises. This
invoice amount shall be pro-rated for partial years and Pasini
authorizes Fund XVIII to deduct such amount from Pasini's share
of revenue from the Premises. Pasini may terminate this
agreement respecting quarterly accounting and distributions in
this paragraph at any time and seek to collect its share of
rental stream directly from the tenant.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Pasini shall
be entitled to receive 12.6222% of all
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XVIII 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, or
set forth herein.
7. This 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 the
expiration date plus extensions of the net lease agreement or
upon the sale of the entire Premises and proportional
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 Premises and with the title thereto. Once any
person, party or entity has ceased to have an interest in fee in
the Premises, 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. Pasini agrees to
notify Fund XVIII upon the appointment of any successor trustee,
or any amendment of the Xxxx Xxxxxx and Xxxxx Xxxxxx Trust
affecting the powers of the Trustee to manage or dispose of the
Xxxxxxx'x interest in the Premises.
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:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
If to Fund XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
If to Wood:
Xxxx X. Xxxx and Xxxxxxxx Xxxxxx Xxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxx, XX 00000
If to Pasini:
Xxxx Xxxxxx and Xxxxx Xxxxxx, Trustees
0000 Xxxxxx Xxxxx Xxxxx
Xxxx, 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.
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.
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Pasini Xxxx Xxxxxx and Xxxxx Xxxxxx Trust
By: /s/ Xxxx Xxxxxx Tee
Xxxx Xxxxxx, Trustee
By: /s/ Xxxxx Xxxxxx Tee
Xxxxx Xxxxxx, Trustee
WITNESS:
(Print Name)
WITNESS:
(Print Name)
STATE OF Nevada )
) ss
COUNTY OF Washoe )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 23rd day of December,1996, by Xxxxxx X Xxxxxx, Notary
Public.
[notary seal]
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
WITNESS:
/s/ Xxxxx X. Xxxxxx
Xxxxx X Xxxxxx
(Print Name)
WITNESS:
/s/ Xxxxx Xxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx
(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 30th day of
December, 1996, Xxxxxx X. Xxxxxxx, President of AEI Fund
Management XVIII, Inc., corporate general partner of AEI Real
Estate Fund XVIIII 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 Xxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
EXHIBIT A
Legal Description
Premises: XXXXXXXX'X NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Xxxxxx County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Xxxxxx County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx 0 Xxxxx,
Xxxxx 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
