PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Destin, FL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 9th day of September, 1997, by
and between Xxxxxx Xxxxx, Trustee and Xxxxx Do, Trustee of the
Xxxxx-Do Family Living Trust, dated 8/19/97, (hereinafter called
"Xxxxx-Do"), and AEI Real Estate Fund XVIII Limited Partnership
(hereinafter called "Fund XVIII") (Xxxxx-Do, 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 23.6072% interest
in and to, and Xxxxx-Do presently owns an undivided 14.3409%
interest in and to, and Xxxxxxx Family Limited Partnership
presently owns an undivided 31.2892% interest in and to,and Xxxx
X. Xxxx and Xxxxxxxx Xxxxxx Xxxx presently own an undivided
11.0814% interest in and to, and The Xxxx Xxxxxx and Xxxxx Xxxxxx
Trust presently own an undivided 12.6222% interest in and to; and
Xxxxxx Xxxxxxxxx presently owns an undivided 7.0591% 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 Xxxxx-Do'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 Xxxxx-Do 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 Xxxxx-Do. Only Fund XVIII may obligate Xxxxx-Do with
respect to any expense for the Premises.
Co-Tenant Initial:
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
As further set forth in paragraph 2 hereof, Fund XVIII
agrees to require any Tenant of the Premises to name Xxxxx-Do 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 Xxxxx-
Do under this Agreement, and may pay to itself the amount of
Xxxxx-Do's share of any legitimate expenses of the Premises which
are not paid by Xxxxx-Do 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 Xxxxx-Do'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.
Xxxxx-Do has no requirement to, but has, nonetheless, elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $720 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Xxxxx-Do with quarterly accounting and
distributions of Xxxxx-Do's share of net income and for tracking,
reporting and assessing the calculation of Xxxxx-Do's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Xxxxx-Do
authorizes Fund XVIII to deduct such amount from Xxxxx-Do's share
of revenue from the Premises. Xxxxx-Do may terminate this
agreement in this paragraph respecting accounting and
distributions 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 Xxxxx-Do
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, Xxxxx-Do
shall be entitled to receive 14.3409% 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-Tenant Initial: /s/ TH /s/ TD
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
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.
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
October 31, 2021 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 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 Xxxxx-Do Family Living Trust:
Xxxxxx Xxxxx, Trustee
Xxxxx Do, Trustee
0000 Xxxxx Xxxx Xx
Xxxxxxxxxxx, Xxxx 00000
Co-Tenant Initial: /s/ TH /s/ TD
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
If to Xxxxxxx:
The Xxxxxx X. Xxxxxxx Family Limited Partnership
Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx
0000 X. Xxxxxx
Xxxxxx, XX 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
If to Nicoletta:
Xxxxxx Xxxxxxxxx
0000 Xxxxxxxx
Xxxxx Xxxxxxxxx, 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: /s/ TH /s/ TD
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.
Xxxxx-Do Xxxxx-Do Family Living Trust, dated
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Trustee
WITNESS:
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
(Print Name)
WITNESS:
/s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
(Print Name)
State of Tennessee )
) ss.
County of Xxxxxxxx )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 19th day of August,1997, by Xxxxxx Xxxxxxxxx, Notary
Public.
/s/ Xxxxxx Xxxxxxxxx
Notary Public
exp 10-11-97
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Co-Tenant Initial: /s/ TH /s/ TD
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
By: /s/ Xxxxx Do
Xxxxx Do, Trustee
WITNESS:
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
(Print Name)
WITNESS:
/s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
(Print Name)
State of Tennessee )
) ss.
County of Xxxxxxxx )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 19th day of August, 1997, by Xxxxxx Xxxxxxxxx, Notary
Public.
/s/ Xxxxxx Xxxxxxxxx
Notary Public
exp 10-11-97
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ TH /s/ TD
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/ Xxxx X Xxxxxxxx
Xxxx X Xxxxxxxx
(Print Name)
WITNESS:
/s/ Xxxxx X Xxxxxx
Xxxxx X Xxxxxx
(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 9th day of
September, 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.
/s/ Xxxxx X Xxxxxx
Notary Public
[notary seal]
Co-Tenant Initial: /s/ TH /s/ TD
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
EXHIBIT A
Legal Description
Premises: APPLEBEE'S 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.
