PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant, Crestview Hills, KY)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 17th day of Oct, 1996, by and
between the Xxxx X. Xxxxxx Living Trust (hereinafter called
"Xxxxxx"), and AEI Net Lease Income & Growth Fund XIX Limited
Partnership (hereinafter called "Fund XIX") (Xxxxxx, Fund XIX
(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 XIX presently owns an undivided 1.1054% interest in
and to, and Xxxxxx presently owns and undivided 13.5509% interest
in and to, and Xxxxxxxx Xxxxxxx presently owns an undivided
12.4668% (also referred to herein as Co-Tenant) interest in and
to, and The Gummerscheimer Living Trust presently owns an
undivided 4.9867% (also referred to herein as Co-Tenant")
interest in and to, and The Nicoletta Trust presently owns an
undivided 10.5969% (also referred to herein as "Co-Tenant")
interest in and to, and The Xxxx Xxxxxx Trust presently owns an
undivided 10.5969% (also referred to herein as "Co-Tenant") in
and to, and Xxxxxx Xxxxxx Partners presently owns an undivided
14.5707% (also referred to herein as "Co-Tenant"),interest in and
to and Xxxxxxx and Xxxxxx Xxxxxxx presently own an undivided
13.7097% (also referred to herein as "Co-Tenant"),interest in and
to, and Xxxxxxx Xxxxx presently owns an undivided 12.1741% (also
referred to herein as "Co-Tenant") interest in and to, and the
Xxxxxx Trust presently owns an undivided 6.2419% (also referred
to herein as "Co-Tenant") interest in and to, the land, situated
in the City of Crestview Hills, County of Kenton, and State of
Kentucky, (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 XIX; 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 XIX, or its designated agent, successors or
assigns. Provided, however, if Fund XIX shall sell all of its
interest in the Premises, the duties and obligations of Fund XIX
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 XIX 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 XIX 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
Co-Tenant Initial: M
Co-Tenancy Agreement for Applebee's, Xxxxxxxxx Xxxxx, XX
modifications to leases or guarantees of lease or easements
affecting the Premises, on behalf of all present or future Co-
Tenants. Only Fund XIX may obligate any Co-Tenant with respect to
any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XIX 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 XIX 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 XIX 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, 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 XIX 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 XIX or its assigns, within ten (10) days after
demand by Fund XIX. In the event there is insufficient operating
income from which to deduct Xxxxxx'x unpaid share of operating
expenses, Fund XIX 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.
Xxxxxx has elected to retain, and agrees to annually reimburse,
Fund XIX in the amount of $700 for the expenses, direct and
indirect, incurred by Fund XIX 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 XIX to deduct such amount from Xxxxxx'x share of
revenue. Xxxxxx 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 XIX'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 XIX 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 13.5509% of all items of income and expense generated
by the Premises, and Fund XIX shall be entitled to receive
1.1054% 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 XIX, shall,
Co-Tenant Initial: M
Co-Tenancy Agreement for Applebee's, Xxxxxxxxx Xxxxx, XX
within fifteen (15) business days after receipt of notice, make
payment to Fund XIX 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 (including Co-Tenant Xxxxxx Trust which
owns an undivided 6.2419 percent interest in the Premises,
subject to a Co-Tenancy Agreement with Fund XIX dated May 25,
1994, and including Co-Tenant Xxxxxxx Xxxxx which owns an
undivided 12.1741% interest in the Premises, subject to a Co-
Tenancy Agreement with Fund XIX dated July 15, 1994 and including
Co-Tenant Potloff Living Trust which owns an undivided 13.7097%
interest in the Premises, subject to a Co-Tenancy Agreement with
Fund XIX dated September 9, 1994 and including Co-Tenant Xxxxxx
Xxxxxx Partners which owns and undivided 14.5707% interest in the
Premises, subject to a Co-Tenancy Agreement with Fund XIX dated
July 14, 1995 and including Co-Tenant Xxxx Xxxxxx Trust which
owns an undivided 10.5969% interest in the Premises, subject to a
Co-Tenancy Agreement with Fund XIX dated December 4, 1995 and
including Co-Tenant The Nicoletta Trust which owns an undivided
10.5969% interest in the Premises, subject to a Co-Tenancy
Agreement with Fund XIX dated December 4, 1995 and including Co-
Tenant The Gummerscheimer Living Trust which owns an undivided
4.9867% interest in the Premises, subject to a Co-Tenancy
Agreement with Fund XIX dated April 26, 1996 and including Co-
Tenant Xxxxxxxx Xxxxxxx which owns an undivided 12.4668% interest
in the Premises, subject to a Co-Tenancy Agreement with Fund XIX
dated May 15, 1996) 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
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 XIX:
AEI Net Lease Income & Growth Fund XIX Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Co-Tenant Initial: M
Co-Tenancy Agreement for Applebee's, Xxxxxxxxx Xxxxx, XX
If to Xxxxxx:
Xxxx X. Xxxxxx, Trustee
000 Xxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
If to Gummerscheimer
Xxxxxxxxx and Xxxxx Xxxxxxxxxxxxx, Trustees
000 X. xxxx Xxxxxx
Xxxx, XX 00000-0000
If to Xxxxxxx:
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to Nicoletta:
Xxx Xxxxxxxxx, Trustee
0000 Xxxxxxxx
Xxxxx Xxxxxxxxx, XX 00000
If to Xxxxxx:
Xxxx Xxxxxx, Trustee
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
If to Xxxxxx:
Xxxxxx and Xxxx Xxxx Xxxxxx, Trustees
of the Xxxxxx Trust
000 X. Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to Bagot:
Xxxxxxx Xxxxx
0000 X. Xxxxxxx
Xxxxxxxx, XX 00000
If to Potloff:
Xxxxxx and Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Co-Tenant Initial: M
Co-Tenancy Agreement for Applebee's, Xxxxxxxxx Xxxxx, XX
If to Xxxxxx Xxxxxx Partners:
Xxxxxx Xxxxxx, Partner
000 X. Xxxx Xx., Xxxxx #000
Xxxxxxx, 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.
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.
Co-Tenant Initial: M
Co-Tenancy Agreement for Applebee's, Crestview Hills, KY
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 Xxxxxx Trustee
Xxxx Xxxxxx, Trustee
Witness By: /s/ Xxxxxx Cononer
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 ,1996, by ,
Notary Public.
Fund XIX AEI Net Lease Income & Growth Fund XIX Limited Partnership
By: AEI Fund Management XIX, Inc., its corporate general partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Witness By: /s/ Xxxxx Xxxxxx
Witness By: /s/ Xxxxx 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 17th day of October,
1996, Xxxxxx X. Xxxxxxx, President of AEI Fund Management XIX,
Inc., corporate general partner of AEI Net Lease Income & Growth
Fund XIX 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:
Co-Tenancy Agreement for Applebee's, Xxxxxxxxx Xxxxx, XX
State of California
County of San Mateo
On October 8, 1996, before me, Xxxx X. Xxxx, a Notary Public,
personally appeared Xxxx Xxxxxx, Trustee, personally known to me
(or Proved to me on the basis of satisfactory evidence) to be the
person(s) whose names(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his /her/their authorized capacity (ies) and that by
his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the
instrument.
Witness my hand and official seal.
Signature /s/ Xxxx X. Xxxx [notary seal]
Xxxx X. Gage
This acknowledgement must be attached to that certain Propery Co-
Tenancy Ownership Agreement
EXHIBIT A
A certain tract or parcel of land situated in the County of
Kenton, in the Commonwealth of Kentucky, and in the City of
Crestview Hills, commencing at a corner formed by the
intersection of the northwesterly right-of-way of Turkeyfoot
Road, also known as the State Route 1303, with the southerly
right-of-way of Interstate Route 275; thence from said corner
South 34 42' 34" West, along the Northwesterly right-of-way of
Turkeyfoot Road 372.64 feet to an iron pin; thence leaving said
right-of-way, North 4 57' 00" West 309.17 feet to a point; said
point being the TRUE POINT OF BEGINNING; thence along a new
division line, South 48 03' 00" West, 160.11 feet; thence North
83 42' 30" West 21.31 feet to a point on the Northeasterly right-
of-way of Crestview Hills Mall; thence along said right-of-way,
North 35 28' 00" West, 169.31 feet; thence along a curve to the
left, having a radius of 454.41 feet, chord bearing of North 45
17' 42" West 155.13 feet, and a total arc length of 155.89 feet,
to an iron pin; thence leaving said right-of-way and with the
East line of the City of Crestview Hills Property, Deed Book 855,
Page 45, North 34 52' 37" East, 128.49 feet to an iron pin;
thence leaving the East line of said City of Crestview Hills
Property, and with the South right-of-way of Interstate 275
Eastbound Ramp "D," South 61 22' 45" East 99.39 feet to an iron
pin; thence continuing with said right-of-way South 72 52' 01"
East, 108.09 feet to an iron pin; thence North 84 20'21" East,
90.33 feet to an iron pin; thence leaving said right-of-way and
with the West line of J. Xxxxxx Xxxxxxxxxxx et al. Property, Deed
Book 952, Page 314, South 48 03' 00" West 122.28 feet to an iron
pin; thence along the South line of said J. Xxxxxx Xxxxxxxxxxx et
al., South 41 57' 00" East 128.34 feet to the TRUE POINT OF
BEGINNING.
The parcel contains 1.4205 acres of land and is subject to all
legal easements and rights-of way of record.
The above description was prepared by Xxx X. Xxxxx, Kentucky Land
Surveyor #2916.
Being the same property conveyed to Xxxxxx and King, Inc., a
South Carolina corporation, by West Shell, Inc., a Kentucky
corporation by deed dated December 15, 1992, and of record in
Deed Book 1089, Page 346, in the Kenton County Clerk's Office.
Provided, however, that the Grantor retains a fifteen foot (15')
storm sewer easement upon the above-described 1.4205-acre parcel,
the centerline of said easement being described as follows:
Situated in the City of Crestview Hills, County of Kenton,
Commonwealth of Kentucky, and being a 15-foot wide strip of land
extending 7.5 feet on each side of the following described
centerline:
Beginning at a point in the grantor's Southeast boundary line
found by measuring from the intersection of the South right-of-
way line of Interstate 275 and the Northwest right-of-way line of
State Route 1303 (Turkeyfoot Road), south 34 42' 34" West, 372.64
feet along said right-of-way of State Route 1303, North 41 57'
00" West, 309.17 feet, thence South 48 03' 00" West, 54.00 feet
along the grantor's Southeast boundary line, said point being the
TRUE POINT OF BEGINNING;
thence North 12 57' 00" West, 60.00 feet;
The above description was prepared by Xxx X. Xxxxx, Registered
Land Surveyor #2916 in the Commonwealth of Kentucky.
TOGETHER WITH a certain License Agreement between West Shell,
Inc. as Licensor and Xxxxxx and King, Inc. d/b/a Applebee's
Restaurant as Licensee, dated December 1, 1992, and recorded
December 18, 1992 in Book 105, Page 59 of the Clerk's Office of
Kenton County, Kentucky.
