PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Tractor Supply Company Store - Bristol, VA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 5th day of November, 1997, by and
between Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx, Trustees of the
Ainslie Living Trust dated December 24, 1996,, (hereinafter
called "Ainslie"), and AEI Real Estate Fund XVIII Limited
Partnership (hereinafter called "Fund XVIII") (Ainslie, 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 19.1711% interest
in and to, and Ainslie presently owns an undivided 18.4736%
interest in and to and the Xxxxxx Xxxxxxx Family Limited
Partnership presently owns an undivided 29.1380% interest in and
to, and Xxxxxxx and Xxxxx Xxxxx presently owns an undivided
11.6552% interest in and to, and Xxxx and Xxxxxx Xxxxxxxxx
presently own an undivided 11.6552% interest in and to, and Xxxxx
X. Xxxxx presently owns an undivided 9.9069% interest (also
referred to herein as Co-Tenant) in and to, the land, situated in
the City of Bristol, County of Washington, and State of Virginia,
(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 Ainslie'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 Ainslie 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, and Fund XVIII retains the sole
right to deal with, any property agent or tenant 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 Ainslie. Only Fund XVIII may obligate Ainslie with
respect to any expense for the Premises.
Co-Tenant Initial: /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any Tenant of the Premises to name Ainslie 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, expenses and any net proceeds from a sale of the
Premises 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 Ainslie under this
Agreement, and may pay to itself the amount of Ainslie's share of
any legitimate expenses of the Premises which are not paid by
Ainslie 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 Ainslie'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 Premises.
Ainslie has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $874 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Ainslie with quarterly accounting and
distributions of Ainslie's share of net income and for tracking,
reporting and assessing the calculation of Ainslie's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Ainslie
authorizes Fund XVIII to deduct such amount from Ainslie's share
of revenue from the Premises. Ainslie may terminate this
agreement respecting quarterly accounting and distributions in
this paragraph at any time and seek 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
XVIII pursuant to section 1 hereof. Fund XVIII may terminate its
obligation under this paragraph upon 30 days notice to Ainslie
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 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, Ainslie
shall be entitled to receive 18.4736% 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 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-Tenant Initial: /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
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 property management 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
April 10, 2020 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in any poortion
of 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. Ainslie agrees to
notify Fund XVIII upon the appointment of any successor trustee,
or any amendment of the Ainslie Loving Trust affecting the powers
of the Trustees to manage or dispose of the Ainslie Trust's
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;
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 Ainslie:
Xxxxxx X. and Xxxxxx X. Xxxxxxx, Trustees
00000 Xxx Xx Xxxxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
Co-Tenant Initial:
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
If to Xxxxxxx:
Xxxxxx X. Xxxxxxx Family Limited Partnership
Xxxxx Xxxxxxx
0000 X. Xxxxxx
Xxxxx, XX 00000
Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
If to Xxxxx:
Xxxxxxx and Xxxxx Xxxxx
0000 Xxxxxx Xxxxx Xxxx
#X000
Xxxxxxxxx, XX 00000
If to Middleton:
Xxxx X. and Xxxxxx X. Xxxxxxxxx
X.X. Xxx 000
Xxxxx, XX 00000-0000
If to Xxxxx:
Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxx 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.
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
Co-Tenant Initial: /s/ MBA /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
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. This Agreement is governed by the Laws of the Commonwealth
of Virginia.
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ MBA /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Ainslie The Ainslie Living Trust
By: /s/ Xxxxxx X Xxxxxxx, Trustee
Xxxxxx X. Xxxxxxx, Trustee
WITNESS:
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
(Print Name)
WITNESS:
/s/ Xxxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx
(Print Name)
STATE OF CALIFORNIA)
) ss
COUNTY OF ORANGE)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 27th day of August,
1997, Xxxxxx X. Xxxxxxx, Trustee, who executed the foregoing
instrument in said capacity and on behalf of the said Trust.
By:/s/ Xxxxxx X Xxxxxxx, Trustee
Xxxxxx X. Xxxxxxx, Trustee
WITNESS:
/s/ Xxxxx Xxxxx [notary seal]
Xxxxx Xxxxx /s/ Xxxxxxxx Xxxxxx,
(Print Name) Notary Public
WITNESS:
/s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
(Print Name)
STATE OF CALIFORNIA)
) ss
COUNTY OF ORANGE)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 27th day of August,
1997, Xxxxxx X. Xxxxxxx, Trustee, who executed the foregoing
instrument in said capacity and on behalf of the said Trust.
Co-Tenant Initial: /s/ MBA /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
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/ Xxxxxxxxxx X Xxxx
Xxxxxxxxxx X Xxxx
(Print Name)
WITNESS:
/s/ Jo Xxx Xxxx
Jo Xxx Xxxx
(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 5th day of November,
1997, 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.
[notary seal] /s/ Xxxxx X Xxxxxx
Notary Public
Co-Tenant Initial: /s/ MBA /s/ EEA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Xxxxxxxx Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Xxxx'x Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
