PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's Restaurant - Montgomery, AL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 28th day of July, 1999, by and
between Roland Terry, (hereinafter called "Terry") and AEI Income
& Growth Fund XXI Limited Partnership (hereinafter called "Fund
XXI") Terry, 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 45.8039% interest
in and to, and Roland Terry owns an undivided 20.3540% interest
in and to and the Catharine C. Whittenburg Testamentary Trust for
J. A. Whittenburg IV or Assigns presently owns an undivided
21.5614% interest in and to, and the Cheung Living Trust Dated
July 27, 1989 presently owns an undivided 12.2807% interest in
and to the land, situated in the City of Montgomery, 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 Terry's 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 Terry 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.
Terry 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 Terry As long as Fund XXI owns an interest in the
Premises, only Fund XXI may obligate Terry 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 Terry 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 endorsements adding Co-Tenants to said
policies from lessee within 30 days of commencement
Co-Tenant Initial: /s/ RT
Co-Tenancy Agreement for Arby's-Montgomery
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 Terry
under this Agreement, and may pay to itself the amount of Terry's
share of any reasonable expenses of the Premises which are not
paid by Terry 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 Terry's 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.
Terry has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XXI in the amount
of $ 826 for the expenses, direct and indirect, incurred by Fund
XXI in providing Terry with quarterly accounting and
distributions of Terry's share of net income and for tracking,
reporting and assessing the calculation of Terry's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Terry authorizes
Fund XXI to deduct such amount from Terry's share of revenue from
the Premises. Terry 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 Terry 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, Terry shall be entitled
to receive 20.3540% 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 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.
Co-Tenant Initial: /s/ RT
Co-Tenancy Agreement for Arby's-Montgomery
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.
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
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Cheung:
Howard Owyoung Cheung
Rosemarie Cheung
10 Live Oak Court
Hillsborough, CA 94010
If to Whittenburg:
Diane E. Bowes
Jack F. Turner
J. A. Whittenburg III
K. K. Davidson
J. A. Whittenburg IV
Post Office Box 26
Amarillo, TX 79105
Co-Tenant Initial: /s/ RT
Co-Tenancy Agreement for Arby's-Montgomery
If to Terry:
Roland Terry
154 Little Hendricks Pk #20612
Jasper, GA 30143
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/ RT
Co-Tenancy Agreement for Arby's-Montgomery
TERRY ROLAND TERRY
By:/s/ Roland Terry
Roland Terry
STATE OF Georgia)
) ss
COUNTY OF Cherokee )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 27 day of July,
1999, Roland Terry who executed the foregoing instrument in said
capacity.
/s/ Angela J Garland
Notary Public
[notary seal]
Co-Tenant Initial: /s/ RT
Co-Tenancy Agreement for Arby's-Montgomery
Fund XXI AEI Income & Growth Fund XXI Limited Partnership
By: AEI Fund Management XXI, Inc., its corporate general
partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of July,
1999, Robert P. Johnson, 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/ Barbara J Kochevar
Notary Public
[notary seal]
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 Taco Bell Plat No.
3, Zelda Road as recorded in the Montgomery County Probate
Office, said point being on the curve of the Northerly right
of way of Zelda Road, 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 of way of Interstate Highway I-85;
thence S 52 30' 39" E, along the southerly right of way of
Interstate Highway I-85 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.