PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Temple Terrace, FL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 2nd day of Jan, 1997, by and
between Xxxxxxx X. Xxxxx and Xxxxx Xxxxx as tenants in common
(hereinafter called "Xxxxx"), and AEI Net Lease Income & Growth
Fund XIX Limited Partnership (hereinafter called "Fund XIX")
(Xxxxx, 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 9.0963% interest in
and to and Xxxxx presently owns an undivided 11.5416% interest in
and to and Xxxxxxx presently owns an undivided 14.4270% interest
in and to and Xxxxx Xxxxxxxx presently owns an undivided 5.7170%
(also referred to herein as "Co-Tenant") interest in and to and
The Xxxx Xxxxxx Trust presently owns an undivided 11.9455% (also
referred to herein as "Co-Tenant") interest in and to, and
Xxxxxxxx X. Xxxxxxxx presently owns an undivided 15.4545% (also
referred to herein as "Co-Tenant")interest in and to and the Xxx
Revocable Trust presently owns an undivided 16.3636% (also
referred to herein as "Co-Tenant") in and to and Xxxxxx X. Xxxxxx
presently owns an undivided 15.4545% (also referred to herein as
"Co-Tenant") in and to the land, situated in the City of Temple
Terrace, County of Hillsborough, and State of Florida, (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 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 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 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,
Co-Tenant Initial: /s/ WEM /s/ HM
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
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 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 Tenant 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 XIX 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 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 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 XIX 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 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 Xxxxx'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
Tenant under terms of any lease agreement of the Premises..
Xxxxx has elected to retain, and agrees to annually reimburse,
Fund XIX in the amount of $595 for the expenses, direct and
indirect, incurred by Fund XIX 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 XIX to deduct such amount from Xxxxx'x share of
revenue from the Premises. Xxxxx 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.
Co-Tenant Initial: /s/ WEM /s/ HM
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
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, Xxxxx shall be entitled
to receive 11.5416% 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 XIX, shall,
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. AEI may, at its discretion, use all or any
portion of the Credit Enhancement, paid to AEI by the lessee, in
satisfaction of AEI's proportionate share of required operating
capital. Said Credit Enhancement shall not be used for the
benefit of, or in payment of, any other Co-Tenant's share of
required operating capital.
5. Subject to the terms hereof, 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. Xxxxx'x interest in the Premises is
subject to the rights of first refusal and other rights of Co-
Tenants and terms and conditions recited in the unrecorded Co-
Tenancy Agreement referred to in those certain instruments
recorded in Official Records Book 7253, page 672; Official
Records Book 7341, page 1266; Official Records Book 7903, page
1116; Official Records Book 7978, page 364; Official Records Book
8176, page 934; and Official Records Book 8353, page 835, all of
public records of Hillsborough County, Florida.
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
Co-Tenant Initial: /s/ WEM /s/ HM
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
assigns until the expiration date plus extensions of the net
lease agreement or upon the sale of the entire Premises and
proportional 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
If to Xxxxx:
W.E. & Xxxxx Xxxxx
0000 Xxxxxx Xxxxx Xx., X-000
Xxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxxx and Xxxxxxx Xxxxxxx
0000 X. Xxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
If to Xxxxxxxx:
Xxxxx Xxxxxxxx
00000 Xxxxxxx Xxxxxx X.
Xxxxxxx, XX 00000
If to the Xxxx Xxxxxx Trust:
Xxxx Xxxxxx
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Co-Tenant Initial: /s/ WEM /s/ HM
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
If to Xxxxxxxx Xxxxxxxx:
Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
XxXxxx, XX 00000
If to Xxx Revocable Trust:
Xxxx X. or Xxxxx X. Xxx
00000 X. Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
If to Xxxxxx X. Xxxxxx:
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx 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.
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.
Xxxxx Xxxxxxx X. Xxxxx and Xxxxx Xxxxx as tenants in common
By: /s/ Xxxxxxx X Xxxxx
Xxxxxxx X. Xxxxx
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
WITNESS:
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
(Print Name)
WITNESS:
/s/ Xxxxx X Xxxxxx
Xxxxx X. Xxxxxx
(Print Name)
STATE OF Tennessee)
) ss
COUNTY OF Xxxxxxxxxx)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 26th day of December,1996, by Xxxx X Xxxxxxx, Notary
Public.
com exp: 4-1-97
/s/ Xxxx X Xxxxxxx
Co-Tenant Initial: /s/ WEM /s/ H.M.
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
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:
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
(Print Name)
WITNESS:
/s/ Jo Xxx Xxxx
Jo Xxx Xxxx
(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 2nd day of January,
1997, 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: /s/ WEM /s/ H.M.
Co-Tenancy Agreement for Applebee's Restaurant - Temple Terrace, FL
Exhibit A
Lot 1, of Terrace Walk, according to map or plat thereof as
recorded in Plat Book 70, Pages 33-1 and 33-2, of the Public
Records of Hillsborough County, Florida.
