PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Middletown, OH)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of October, 1997, by and
between Xxxx XxXxxx, Inc., a California Corporation (hereinafter
called "XxXxxx"), and AEI Net Lease Income & Growth Fund XX
Limited Partnership (hereinafter called "Fund XX") (XxXxxx, 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 66.1403% interest in
and to, and XxXxxx presently owns an undivided 18.6076% interest
in and to, and Xxxxxxx and Xxxxxxx Xxxxxx presently own an
undivided 15.2521% interest in and to the land, situated in the
City of Middletown, County of Xxxxxx, and State of OH, (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 XxXxxx'x 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 XxXxxx 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. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with, and Fund XX 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 XxXxxx. Only Fund XX may obligate XxXxxx 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 XxXxxx 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
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
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 XxXxxx
under this Agreement, and may pay to itself the amount of
XxXxxx'x share of any legitimate expenses of the Premises which
are not paid by XxXxxx to Fund XX or its assigns, within ten (10)
days after demand by Fund XX. In the event there is insufficient
operating income from which to deduct XxXxxx'x 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.
XxXxxx has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $900 for the expenses, direct and indirect, incurred by Fund
XX in providing XxXxxx with monthly accounting and distributions
of XxXxxx'x share of net income and for tracking, reporting and
assessing the calculation of XxXxxx'x share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and XxXxxx authorizes Fund XX to deduct
such amount from XxXxxx'x share of revenue from the Premises.
XxXxxx 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 XxXxxx 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, XxXxxx shall be entitled
to receive 18.6076% 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/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
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
July 14, 2029 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 XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
if to XxXxxx:
Xxxx XxXxxx Francesco
X.X. Xxx 000
Xxxxxxx, XX 00000
If to Xxxxxx:
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
000 Xxxxxx
Xxxx 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.
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
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.
The remainder of this page intentionally left blank
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
XxXxxx Xxxx XxXxxx, Inc.
By: /s/ Xxxx XxXxxx Francesco
Xxxx XxXxxx Francesco, Secretary/Treasurer
WITNESS:
/s/ Xxxxxx Xxxx
Xxxxxx Xxxx
(Print Name)
WITNESS:
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
(Print Name)
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this day of______________,1997, by____________,
Notary Public.
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/ Xxxx X Xxxxxxxx
Xxxx X Xxxxxxxx
(Print Name)
WITNESS:
/s/ Xxxxxxxx Xxxx
Xxxxxxxx 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 10th day of October,
1997, 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]
EXHIBIT "A"
Situated in the State of Ohio, County of Xxxxxx, City of
Middletown, Section 0, Xxxx 0 Xxxx, Xxxxx 0 Xxxxx, Xxxxxxxx
Township;
Being Lot Number Five (5) of MIDDLETOWN CROSSING, as the same is
numbered and delineated upon the recorded plat thereof, of record
in Plat Book 27, pages 15 and 16, Recorder's Office, Warren
Coutny, Ohio.
Subject to all covenants, conditions, restrictions and easements
of record.
