PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
Tractor Supply-Maryville, Tennessee
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21st day of November, 2001, by
and between Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, husband and
wife (hereinafter called "Xxxxxx"), and AEI Real Estate Fund XV
Limited Partnership (hereinafter called "Fund XV"), (Xxxxxx, Fund
XV (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 XV presently owns an undivided 10.0523% interest in
and to, and Xxxxxx presently owns an undivided 12.5594% interest
in and to, and Munkberg Farms Inc., a Minnesota Corporation
presently owns an undivided 15.3915% interest in and to, and
Xxxxxx X. Xxxxxxx presently owns and undivided 10.1789% interest
in and to, and Xxxxxx X. Xxxx and Xxx X. Xxxx, Trustees of the
Wood Family Trust dated 3/15/93, as amended 7/9/97 presently owns
an undivided 17.4026% interest in and to, and The Xxxxxx X. Nate
Revocable Living Tust dated 11/29/96, Xxxxxx X. Nate, Trustee and
Xxxxxx X. Nate, Trustee presently owns an undivided 12.5502%
interest in and to, and Xxxxx Enterprises, LLC presently owns an
undivided 12.7385% interest in and to, and Tall Pines Farm
Limited Partnership presently owns and undivided 9.1266% interest
in and to the land, situated in the City of Maryville, County of
Xxxxxx, and State of Tennessee, (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 XV; 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 XV, or its designated agent, successors or
assigns. Provided, however, if Fund XV shall sell all of its
interest in the Premises, the duties and obligations of Fund XV
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 XV 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.
Xxxxxx hereby designates Fund XV as its sole and exclusive agent
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
to deal with, and Fund XV 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 XV, 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. As long as Fund XV owns an interest in the
Premises, only Fund XV may obligate Xxxxxx with respect to any
expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XV 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 XV 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 XV 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 XV 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 reasonable expenses of the Premises which
are not paid by Xxxxxx to Fund XV or its assigns, within ten (10)
days after demand by Fund XV. In the event there is insufficient
operating income from which to deduct Xxxxxx'x unpaid share of
operating expenses, Fund XV 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 XV in the amount
of $536 for the expenses, direct and indirect, incurred by Fund
XV in providing Xxxxxx with 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 XV 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 XV pursuant to Section 1 hereof.
Fund XV 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.
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XV'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 XV 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 12.5594% 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 therefore from Fund XV, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XV 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 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 February
14, 2010 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 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;
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
If to Fund XV or Fund 85-A:
AEI Real Estate Fund XV Limited Partnership
AEI Real Estate Fund 85-A Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
If to Xxxxxx:
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx,
husband and wife
00000 Xxxxxx
Xxxxxxxx Xxxx, XX 00000
If to Munkberg:
Munkberg Farms, Inc.
Xxxx Xxxxxxxx, President
0000 000xx Xxx. XX
Xxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxxx X. Xxxxxxx
0000 Xxxx 000 Xxxxx
Xxxxxxxxxxx XX 00000
If to Wood:
Xxxxxx X. Xxxx and Xxx X. Xxxx,
Trustees of the Wood Family Trust
dated 3/15/93, as amended 7/9/97
000 Xxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
If to Nate:
The Xxxxxx X. Nate Revocable Living Trust
dated 11/29/96,
Xxxxxx X. Nate, Trustee and
Xxxxxx X. Nate, Trustee
000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
If to Xxxxx:
Xxxxx Enterprises, LLC
Xxxxxxx Xxxxx, Manager
C/O Xxxxx X. Xxxxxx
Xxxxxx Law Firm
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
If to Farm L.P.:
Tall Pines Farm Limited Partnership
Xxxx X. Xxxxx, member
E. Xxxxxx Xxxxx, member
Xxxx X. Xxxxx, Xx., member
Xxxxxx X. Xxxxxxx, member
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, 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/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
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 X. Xxxxxx and Xxxxxx X. Xxxxxx, husband and
wife
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, husband and wife
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
WITNESS:
/s/ Xxxxx X Xxxxxxxxx
Xxxxx X Xxxxxxxxx
(Print Name)
STATE OF KANSAN)
) ss
COUNTY OF XXXXXXX)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 7th day of November,
2001, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, husband and wife,
who executed the foregoing instrument in said capacity.
/s/ Xxxxxx Xxxxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
Fund XV AEI Real Estate Fund XV Limited Partnership
By: AEI Fund Management 86-A, Inc., its corporate general
partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
WITNESS:
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
(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 21st day of
November, 2001, Xxxxxx X. Xxxxxxx, President of AEI Fund
Management 86-A, Inc, corporate general partner of AEI Real
Estate Fund XV 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]
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
Co-Tenant Initial: /s/ AIM /s/ VJM
Co-Tenancy Agreement for Tractor Supply-Maryville, TN
EXHIBIT "A"
SITUATED in District No. 19 of Xxxxxx County, Tennessee, and in
the 4th Xxxx of the City of Maryville, and being all of Xxx Xx.
00 xx XXXX XXXXXXXX XXXX as shown by plat of said subdivision of
record in Map File 1249B in the Register's Office for Xxxxxx
County, Tennessee, to which reference is hereby made for a more
particular description.
