PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's/Mrs. Winners Restaurant - Smyrna, GA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of Jan, 1997, by and
between Xxxx X. Xxxxxx, Trustee of the Xxxx X. Xxxxxx Living
Trust dated 12/21/93 (added to conform to the facts),,
(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 52.4275% interest in
and to, and Xxxxxx presently owns an undivided 15.8515% interest
in and to and the Xxxx X. Xxxxxx Living Trust presently owns an
undivided 19.4022% interest in and to, and Xxxxxxxx X. Xxxxx
Irrevocable Trust presently owns an undivided 12.3188% interest
(also referred to herein as Co-Tenant) in and to, the land,
situated in the City of Smyrna, County of Xxxx, and State of
Georgia, (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 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 Tenant 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 Tenant within 30 days of commencement of this
agreement. In any event, Fund XX shall distribute any insurance
proceeds it
Co-Tenant Initial:
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 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 elected to retain, and agrees to annually reimburse,
Fund XX in the amount of $547 for the expenses, direct and
indirect, incurred by Fund XX in providing quarterly 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
respecting quarterly accounting and distributions in this
paragraph at any time and seek to collect its 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, Xxxxxx shall be entitled
to receive 15.8515% 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-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-
Co-Tenant Initial:
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 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.
Xxxxxx agrees to notify Fund XX upon the appointment of any
successor trustee, or any amendment of the Xxxx X. Xxxxxx Living
Trust affecting the powers of the Trustee to manage or dispose of
the Xxxxxx'x 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 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
If to Xxxxxx:
Xxxx X. Xxxxxx, Trustee
If to Xxxxxx:
Xxxx X. Xxxxxx, Trustee
000 Xxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Co-Tenant Initial: /s/ MB
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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.
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 X. Xxxxxx Living Trust
By: /s/ Xxxx X Xxxxxx Trustee
Xxxx X. Xxxxxx, Trustee
Witness By: /s/ Xxxx X. Xxxxx
Witness By:
STATE OF California)
) ss
COUNTY OF San Mateo)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 24th day of December,1996, by X. Xxxxxxxx, Notary
Public.
[notary seal]
Co-Tenant Initial:/s/MB
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 X Xxxxxx
Witness By: /s/ Xxxx X Xxxxxxx
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 Jan,
1997, 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/ Liand A Xxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial:
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 of 18.12 feet and having a radius of
2,964.79 feet) to an iron pin set 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 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 from Xxxxxx Financial
Corporation, a Florida Corporation to 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 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 I Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Xxxxxx X. Xxxxx, dated June 8,1992, 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 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, file 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.
