PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's/Mrs. Winners Restaurant - Smyrna, GA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 27th day of Sept, 1996, by and
between Xxxxxxxx X. Xxxxx Irrevocable Trust, (hereinafter called
"Xxxxx"), and AEI Net Lease Income & Growth Fund XX Limited
Partnership (hereinafter called "Fund XX") (Xxxxx, 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 87.6812% interest in
and to, and Xxxxx presently owns and undivided 12.3188% interest
in and to, the land, situated in the City of Smyrna, County of
Xxxx, and State of GA, (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'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 Xxxxx 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 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
modifications to leases or guarantees of lease or easements
affecting the Premises, on behalf of all present or future Co-
Tenants. Only Fund XX may obligate any Co-Tenant 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 Xxxxx 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.
Co-Tenant Initial: /s/ MEB
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 XX may offset against, pay to
itself and deduct from any payment due to Xxxxx under this
Agreement, and may pay to itself the amount of Xxxxx'x share of
any legitimate expenses of the Premises which are not paid by
Xxxxx 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 Xxxxx'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
Lessee under terms of any triple net lease agreement initiated
concurrently with, or subsequent to, this agreement.
Xxxxx has elected to retain, and agrees to annually reimburse,
Fund XX in the amount of $595 for the expenses, direct and
indirect, incurred by Fund XX in providing quarterly accounting
and distributions of Xxxxx'x share of net income and for
tracking, reporting and assessing the calculation of Xxxxx'x
share of operating expenses incurred from the Premises. This
invoice amount shall be pro-rated for partial years and Xxxxx
authorizes Fund XX to deduct such amount from Xxxxx'x share of
revenue. Xxxxx may terminate this agreement at any time and
collect it's 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 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, Xxxxx shall be entitled
to receive 12.3188% of all items of income and expense generated
by the Premises, and Fund XX shall be entitled to receive
87.6812% as its share. 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-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.
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.
Co-Tenant Initial: /s/ MEB
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 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 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 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.
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 Xxxxx:
Xxxxxxxx X. Xxxxx, Trustee
000 X. Xxxxxx Xx.
Xxxxxxxx, 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.
10. 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.
11. 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/ MEB
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
12. 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.
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 Xxxxxxxx X. Xxxxx Irrevocable Trust
By: /s/ Xxxxxxxx X. Xxxxx, Trustee
Xxxxxxxx X. Xxxxx, Trustee
STATE OF Oregon )
) ss [notary seal]
COUNTY OF Xxxxxx )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 10th day of September,1996, by Xxxxxx Xxxxxx, 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 By: /s/ Xxxxx Xxxxxx
Witness By: /s/ Xxxxx xx X. Xxxxxx
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,
1996, Xxxxxx X. Xxxxxxx, President of AEI Fund Management XX,
Inc., corporate general partner of AEI Real Estate 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. Xxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial: /s/ MEB
Co-Tenancy Agreement for Arby's/ Mrs. Winners - Smyrna, GA
EXHIBIT A
ALL THAT TRACT or parcel of land lying and being in Land Lots
688,689, 752 and 753 of the 17th District, 2nd Section of Xxxx
County, Georgia, containing 1.071 acres, same being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Xxxx
Drive (Two-hundred (200') foot Right-of-Way) and of the southerly
Right-of-Way Line of Kenwood Road (Fifty (50') foot Right-of
Way); thence traveling along the westerly Right-of-Way Line of
said South Xxxx Drive south 11 degrees 59 minutes 32 seconds east
a distance of 36.03 feet to a point on said Right-of- Way Line;
thence continuing along said Right-of-Way Line south 09 degrees
19 minutes 41 seconds east a distance of 166.01 feet to a point
on said Right-of Way Line; thence continuing along said Right-of-
Way Line along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11 degrees 12
minutes 11 seconds east a chord distance of 18.12 feet and having
a radius of 2,964.79 feet) to an iron pin se on said Right-of-Way
Line and at the southeast corner of property now or formerly
owned by Wendy's International, Inc., which iron pin set is the
TRUE POINT OF BEGINNING; FROM THE TRUE POINT OF BEGINNING as thus
established continuing along said Right-of Way Line along a curve
to the left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a radius
of 2,964.79 feet) to an iron pin set on said Right-of Way Line
and at the northeast corner of the property now or formerly owned
by Checkers Restaurant; thence leaving said Right-of-Way Line and
traveling along the northwesterly line of said Checkers property
south 71 degrees 15 minutes 52 seconds west a distance 221.74
feet to an iron pin set; thence traveling north 18 degrees 44
minutes 08 seconds west a distance of 132.30 feet to an iron pin
set; thence traveling north 07 degrees 31 minutes 35 seconds east
a distance of 131.18 feet to an iron pin set at the southwest
corner of said Wendy's property; thence traveling along the
southeasterly line of said Wendy's property south 82 degrees 28
minutes 25 seconds east a distance of 200.76 feet to an iron pin
set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Xxxxxxx-Xxxxxxx & Associates, bearing the seal of
Xxxxx X. Xxxxxxx, Georgia Registered Land Surveyor Number 1478,
dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed form Xxxxxx Financial
Corporation, a Florida Corporation to Wendy's International, Inc.
and Ohio Corporation, dated December 26, 1989, filed for record
December 28, 1989 at 2:01 p.m., recorded in Deed Book 5590, Page
288, Records of Xxxx County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to Xxxxxx X.
Xxxxx, dated June 8, 1992, filed for record June 9, 1992 at 10.21
a.m., recorded in Deed Book 6682, Page 118, aforesaid Records.
TOGETHER WITH all rights with respect to the above property set
forth in Easement Grant by and between Xxxxxx Financial
Corporation, a Florida corporation and Wendy's International,
Inc., an Ohio corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 291, aforesaid Records; as amended by that certain
Amendment to Easement Grant, dated June 30, 1993, filed for
record July 1, 1993 at 2:15 p.m., recorded in Deed Book 7448,
Page 421, aforesaid Records.
TOGETHER WITH all rights with respect to the above property set
forth in Easement Agreement by and between American Founders Life
Insurance Company, a Texas corporation and Xxxxxx X. Xxxxx, dated
June 8,1 992, filed for record June 9, 1992, at 10:21 a.m.,
recorded in Deed Book 6682, Page 123, aforesaid Records; as
amended by that certain Amendment to Easement Agreement, dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign Easement by
and between American Founders Life Insurance Company, a Texas
corporation and RTM Georgia, Inc., dated June 30, 1993, filed for
record July 1, 1993 at 2:15 p.m., recorded in Deed Book 7448,
Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New Driveway
Easement Grant by and between American Founders Life Insurance
Company and RTM Georgia, Inc., dated June 30, 1993, filed for
record July 1, 1993 at 2:15 p.m., recorded in Deed Book 7448,
Page 450, aforesaid Records.
