PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's Restaurant - Montgomery, AL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 22nd day of October, 1999, by and
between Xxxxx X. Xxxxxxx, Trustee of The Xxxxxxx Family Trust
Dated 4-14-94, (hereinafter called "Xxxxxxx") and AEI Income &
Growth Fund XXI Limited Partnership (hereinafter called "Fund
XXI") Xxxxxxx, Fund XXI (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 XXI presently owns an undivided 2.6811% interest in
and to,and Xxxxxxx owns an undivided 21.5614% interest in and to,
and VTA owns an undivided 21.5614% interest in and to, and
Xxxxxx Xxxxx owns an undivided 20.3540% interest in and to and
the Xxxxxxxxx X. Xxxxxxxxxxx Testamentary Trust for X. X.
Xxxxxxxxxxx XX or Assigns presently owns an undivided 21.5614%
interest in and to, and the Xxxxxx Living Trust Dated July 27,
1989 presently owns an undivided 12.2807% interest in and to the
land, situated in the City of Xxxxxxxxxx, County of Montgomery,
and State of AL, (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 Xxxxxxx'x interest
by Fund XXI; 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 Xxxxxxx 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 XXI, or its designated agent, successors or
assigns. Provided, however, if Fund XXI shall sell all of its
interest in the Premises, the duties and obligations of Fund XXI
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 XXI 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.
Xxxxxxx hereto hereby designates Fund XXI as its sole and
exclusive agent to deal with, and Fund XXI retains the sole right
to deal with, any property agent or tenant and to negotiate and
enter into, on terms and provisions satisfactory to Fund XXI,
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 Xxxxxxx As long as Fund XXI owns an
interest in the Premises, only Fund XXI may obligate Xxxxxxx with
respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XXI agrees to
require any lessee of the Premises to name Xxxxxxx as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XXI shall use
its best efforts to obtain
Co-Tenant Initial: /s/ BB
Co-Tenancy Agreement for Arby's - Montgomery, AL
endorsements adding Co-Tenants to said policies from lessee
within 30 days of commencement of this agreement. In any event,
Fund XXI 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 XXI may offset
against, pay to itself and deduct from any payment due to Xxxxxxx
under this Agreement, and may pay to itself the amount of
Xxxxxxx'x share of any reasonable expenses of the Premises which
are not paid by Xxxxxxx to Fund XXI or its assigns, within ten
(10) days after demand by Fund XXI. In the event there is
insufficient operating income from which to deduct Xxxxxxx'x
unpaid share of operating expenses, Fund XXI 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.
Xxxxxxx has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XXI in the amount
of $700.00 for the expenses, direct and indirect, incurred by
Fund XXI in providing Xxxxxxx with quarterly accounting and
distributions of Xxxxxxx'x share of net income and for tracking,
reporting and assessing the calculation of Xxxxxxx'x share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Xxxxxxx
authorizes Fund XXI to deduct such amount from Xxxxxxx'x share of
revenue from the Premises. Xxxxxxx 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 XXI pursuant to Section
1 hereof. Fund XXI may terminate its obligation under this
paragraph upon 30 days notice to Xxxxxxx 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 XXI'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 XXI 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, Xxxxxxx shall be
entitled to receive 21.5614% 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 XXI, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XXI sufficient to pay said net operating losses
and to provide necessary operating capital
Co-Tenant Initial: /s/ BB
Co-Tenancy Agreement for Arby's - Montgomery, AL
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 Co-Tenancy 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 June 1,
2025 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 portion 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. Xxxxxxx agrees to notify Fund XXI upon the
appointment of any successor trustee, or any amendment of The
Xxxxxxx Family Trust affecting the powers of the trustees to
manage or dispose of The Xxxxxxx Family 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 given
to all known Co-Tenants and deemed given or served in accordance
with the provisions of this Agreement, if said notice or
elections addressed as follows;
If to Fund XXI:
AEI Income and Growth Fund XXI Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
If to Xxxxxxx:
Xxxxx X. Xxxxxxx, Trustee
The Xxxxxxx Family Trust Dated 4-14-94
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
If to VTA:
VTA Building Company
00000 Xxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
If to Xxxxxx:
Co-Tenant Initial: /s/ BB
Co-Tenancy Agreement for Arby's - Montgomery, AL
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx
00 Xxxx Xxx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Xxxxxxxxxxx:
The Xxxxxxxxx X. Xxxxxxxxxxx Testamentary Trust
Xxxx Xxxxxx Xxx 00
Xxxxxxxx, XX 00000
If to Xxxxx:
Xxxxxx Xxxxx
000 Xxxxxx Xxxxxxxxx Xx #00000
Xxxxxx, 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.
REST OF PAGE INTENTIONALLY LEFT BLANK
Co-Tenant Initial: /s/ BB
Co-Tenancy Agreement for Arby's - Montgomery, AL
The Xxxxxxx Family Trust Dated 4-14-94
By: /s/ Xxxxx X Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee
STATE OF UTAH) [notary seal]
) ss
COUNTY OF Xxxxx)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 29 day of September,
0000, Xxxxx X Xxxxxxx who executed the foregoing instrument in
said capacity.
/s/ Xxxx X Xxxxx
Notary Public
Fund XXI AEI Income & Growth Fund XXI Limited Partnership
By: AEI Fund Management XXI, Inc., its corporate general
partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
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 22nd day of October,
1999, Xxxxxx X. Xxxxxxx, President of AEI Fund Management XXI,
Inc., corporate general partner of AEI Income & Growth Fund XXI
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/ Xxxxxxx X Xxxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial: /s/ BB
Co-Tenancy Agreement for Arby's - Montgomery, AL
EXHIBIT "A"
Commencing at the Northeast corner of the Southeast Quarter
of the Southwest Quarter of Section 16, Township 16 North,
Range 18 East, Montgomery City and County, Alabama, thence
West a distance of 535.66 feet, thence North 328.83 feet to
the Southwest corner of Lot 1-T, of the Xxxx Xxxx Xxxx Xx.
0, Xxxxx Xxxx as recorded in the Xxxxxxxxxx County Probate
Office, said point being on the curve of the Norterly right
of way of Zelda Roas, said curve having a radius of 392.86
feet, a central angle of 30 13' 45" and a chord of 204.88
feet with a chord bearing of S 59 16' 00" E, thence
southeasterly along said curve to the end of said curve,
said point being the Southeast corner of said Lot 1-T, also
being the point of beginning. Thence N 39 28' 53" E, from
the point of beginning along the southeasterly line of said
Lot 1-T, a distance of 152.21 feet to an iron pin found on
the southerly right xx xxx xx Xxxxxxxxxx Xxxxxxx X-00;
thence S 52 30' 39" E, along the southerly right xx xxx xx
Xxxxxxxxxx Xxxxxxx X-00 a distance of 311.90 feet to a found
iron pin; thence S 74 07' 41" W a distance of 270.89 feet to
a found iron pin on the northerly right of way of Zelda
Road; thence N 20 20' 05" W along the Northerly right of way
of Zelda Road a distance of 28.41 feet to the beginning of
the curve of the northerly right of way of Zelda Road, said
curve having a radius of 392.86 feet, a central angle of 20
38' 00" and a chord of 140.71 feet with a chord bearing of N
31 38' 47" W; thence Northwesterly along said curve to the
end of said curve, said point being the southeast corner of
said Lot 1-T, and also being the point of beginning. The
said tract of land is located in the Northeast Quarter of
the Southwest Quarter of Section 16, Township 16 North,
Range 18 East, Montgomery City and County, Alabama.
