SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
Quarterly Report Under Section 13 or 15(d)
of The Securities Exchange Act of 1934
For the Quarter Ended: June 30, 1999
Commission file number: 0-29274
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
(Exact Name of Small Business Issuer as Specified in its Charter)
State of Minnesota 41-1789725
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1300 Minnesota World Trade Center, St. Paul, Minnesota 55101
(Address of Principal Executive Offices)
(651) 227-7333
(Issuer's telephone number)
Not Applicable
(Former name, former address and former fiscal year, if changed
since last report)
Check whether the issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90
days.
Yes [X] No
Transitional Small Business Disclosure Format:
Yes No [X]
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
INDEX
PART I. Financial Information
Item 1. Balance Sheet as of June 30, 1999 and December 31, 1998
Statements for the Periods ended June 30, 1999 and 1998:
Income
Cash Flows
Changes in Partners' Capital
Notes to Financial Statements
Item 2. Management's Discussion and Analysis
PART II.Other Information
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults Upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
BALANCE SHEET
JUNE 30, 1999 AND DECEMBER 31, 1998
(Unaudited)
ASSETS
1999 1998
CURRENT ASSETS:
Cash and Cash Equivalents $ 254,266 $ 557,646
Receivables 0 16,052
----------- -----------
Total Current Assets 254,266 573,698
----------- -----------
INVESTMENTS IN REAL ESTATE:
Land 6,957,341 6,921,884
Buildings and Equipment 11,836,244 11,350,021
Construction in Progress 0 289,014
Property Acquisition Costs 0 10,782
Accumulated Depreciation (1,074,225) (816,805)
----------- -----------
Net Investments in Real Estate 17,719,360 17,754,896
----------- -----------
Total Assets $17,973,626 $18,328,594
=========== ===========
LIABILITIES AND PARTNERS' CAPITAL
CURRENT LIABILITIES:
Payable to AEI Fund Management, Inc. $ 11,561 $ 54,136
Distributions Payable 390,971 451,171
Unearned Rent 24,431 0
----------- -----------
Total Current Liabilities 426,963 505,307
----------- -----------
PARTNERS' CAPITAL (DEFICIT):
General Partners (33,719) (30,953)
Limited Partners, $1,000 Unit Value;
24,000 Units authorized and issued;
23,829 Units outstanding 17,580,382 17,854,240
----------- -----------
Total Partners' Capital 17,546,663 17,823,287
----------- -----------
Total Liabilities and Partners' Capital $17,973,626 $18,328,594
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF INCOME
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
Three Months Ended Six Months Ended
6/30/99 6/30/98 6/30/99 6/30/98
INCOME:
Rent $ 474,548 $ 414,491 $ 954,814 $ 794,545
Investment Income 1,516 53,809 6,601 126,242
---------- ---------- ---------- ----------
Total Income 476,064 468,300 961,415 920,787
---------- ---------- ---------- ----------
EXPENSES:
Partnership Administration -
Affiliates 60,531 62,471 117,977 129,131
Partnership Administration
and Property Management -
Unrelated Parties 19,145 29,609 44,276 63,641
Depreciation 127,918 107,804 257,420 200,625
---------- ---------- ---------- ----------
Total Expenses 207,594 199,884 419,673 393,397
---------- ---------- ---------- ----------
OPERATING INCOME 268,470 268,416 541,742 527,390
GAIN ON SALE OF REAL ESTATE 0 0 0 169,937
---------- ---------- ---------- ----------
NET INCOME $ 268,470 $ 268,416 $ 541,742 $ 697,327
========== ========== ========== ==========
NET INCOME ALLOCATED:
General Partners $ 2,685 $ 2,684 $ 5,418 $ 6,973
Limited Partners 265,785 265,732 536,324 690,354
---------- ---------- ---------- ----------
$ 268,470 $ 268,416 $ 541,742 $ 697,327
========== ========== ========== ==========
NET INCOME PER
LIMITED PARTNERSHIP UNIT
(23,829 weighted average
Units outstanding in 1999
and 1998) $ 11.16 $ 11.15 $ 22.51 $ 28.97
========== ========== ========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF CASH FLOWS
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
1999 1998
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 541,742 $ 697,327
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Depreciation 257,420 200,625
Gain on Sale of Real Estate 0 (169,937)
Decrease in Receivables 16,052 162,677
Decrease in Payable to
AEI Fund Management, Inc. (42,575) (5,196)
Increase in Unearned Rent 24,431 100,206
----------- -----------
Total Adjustments 255,328 288,375
----------- -----------
Net Cash Provided By
Operating Activities 797,070 985,702
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in Real Estate (221,884) (1,927,989)
Proceeds from Sale of Real Estate 0 635,663
----------- -----------
Net Cash Used For
Investing Activities (221,884) (1,292,326)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (Decrease) in Distributions Payable (60,200) 156,409
Distributions to Partners (818,366) (969,698)
----------- -----------
Net Cash Used For
Financing Activities (878,566) (813,289)
----------- -----------
NET DECREASE IN CASH
AND CASH EQUIVALENTS (303,380) (1,119,913)
CASH AND CASH EQUIVALENTS, beginning of period 557,646 2,506,790
----------- -----------
CASH AND CASH EQUIVALENTS, end of period $ 254,266 $ 1,386,877
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF CHANGES IN PARTNERS' CAPITAL
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
Limited
Partnership
General Limited Units
Partners Partners Total Outstanding
BALANCE, December 31, 1997 $ (24,706) $18,472,657 $18,447,951 23,828.87
Distributions (9,697) (960,001) (969,698)
Net Income 6,973 690,354 697,327
--------- ----------- ----------- ----------
BALANCE, June 30, 1998 $ (27,430) $18,203,010 $ 18,175,580 23,828.87
========= =========== =========== ==========
BALANCE, December 31, 1998 $ (30,953) $17,854,240 $17,823,287 23,828.87
Distributions (8,184) (810,182) (818,366)
Net Income 5,418 536,324 541,742
--------- ----------- ----------- ----------
BALANCE, June 30, 1999 $ (33,719) $17,580,382 $17,546,663 23,828.87
========= =========== =========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
JUNE 30, 1999
(Unaudited)
(1) The condensed statements included herein have been prepared
by the Partnership, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission, and
reflect all adjustments which are, in the opinion of
management, necessary to a fair statement of the results of
operations for the interim period, on a basis consistent with
the annual audited statements. The adjustments made to these
condensed statements consist only of normal recurring
adjustments. Certain information, accounting policies, and
footnote disclosures normally included in financial
statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant
to such rules and regulations, although the Partnership
believes that the disclosures are adequate to make the
information presented not misleading. It is suggested that
these condensed financial statements be read in conjunction
with the financial statements and the summary of significant
accounting policies and notes thereto included in the
Partnership's latest annual report on Form 10-KSB.
(2) Organization -
AEI Income & Growth Fund XXI Limited Partnership
(Partnership) was formed to acquire and lease commercial
properties to operating tenants. The Partnership's
operations are managed by AEI Fund Management XXI, Inc.
(AFM), the Managing General Partner of the Partnership.
Robert P. Johnson, the President and sole shareholder of
AFM, serves as the Individual General Partner of the
Partnership. An affiliate of AFM, AEI Fund Management, Inc.
(AEI), performs the administrative and operating functions
for the Partnership.
The terms of the Partnership offering call for a
subscription price of $1,000 per Limited Partnership Unit,
payable on acceptance of the offer. The Partnership
commenced operations on April 14, 1995 when minimum
subscriptions of 1,500 Limited Partnership Units
($1,500,000) were accepted. On January 31, 1997, the
Partnership offering terminated when the maximum
subscription limit of 24,000 Limited Partnership Units
($24,000,000) was reached.
Under the terms of the Limited Partnership Agreement, the
Limited Partners and General Partners contributed funds of
$24,000,000 and $1,000, respectively. During the operation
of the Partnership, any Net Cash Flow, as defined, which the
General Partners determine to distribute will be distributed
90% to the Limited Partners and 10% to the General Partners;
provided, however, that such distributions to the General
Partners will be subordinated to the Limited Partners first
receiving an annual, noncumulative distribution of Net Cash
Flow equal to 10% of their Adjusted Capital Contribution, as
defined, and, provided further, that in no event will the
General Partners receive less than 1% of such Net Cash Flow
per annum. Distributions to Limited Partners will be made
pro rata by Units.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(2) Organization - (Continued)
Any Net Proceeds of Sale, as defined, from the sale or
financing of the Partnership's properties which the General
Partners determine to distribute will, after provisions for
debts and reserves, be paid in the following manner: (i)
first, 99% to the Limited Partners and 1% to the General
Partners until the Limited Partners receive an amount equal
to: (a) their Adjusted Capital Contribution plus (b) an
amount equal to 10% of their Adjusted Capital Contribution
per annum, cumulative but not compounded, to the extent not
previously distributed from Net Cash Flow; (ii) any
remaining balance will be distributed 90% to the Limited
Partners and 10% to the General Partners. Distributions to
the Limited Partners will be made pro rata by Units.
For tax purposes, profits from operations, other than
profits attributable to the sale, exchange, financing,
refinancing or other disposition of the Partnership's
property, will be allocated first in the same ratio in
which, and to the extent, Net Cash Flow is distributed to
the Partners for such year. Any additional profits will be
allocated in the same ratio as the last dollar of Net Cash
Flow is distributed. Net losses from operations will be
allocated 99% to the Limited Partners and 1% to the General
Partners.
For tax purposes, profits arising from the sale, financing,
or other disposition of the Partnership's property will be
allocated in accordance with the Partnership Agreement as
follows: (i) first, to those partners with deficit balances
in their capital accounts in an amount equal to the sum of
such deficit balances; (ii) second, 99% to the Limited
Partners and 1% to the General Partners until the aggregate
balance in the Limited Partners' capital accounts equals the
sum of the Limited Partners' Adjusted Capital Contributions
plus an amount equal to 10% of their Adjusted Capital
Contributions per annum, cumulative but not compounded, to
the extent not previously allocated; (iii) third, the
balance of any remaining gain will then be allocated 90% to
the Limited Partners and 10% to the General Partners.
Losses will be allocated 98% to the Limited Partners and 2%
to the General Partners.
The General Partners are not required to currently fund a
deficit capital balance. Upon liquidation of the
Partnership or withdrawal by a General Partner, the General
Partners will contribute to the Partnership an amount equal
to the lesser of the deficit balances in their capital
accounts or 1% of total Limited Partners' and General
Partners' capital contributions.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate -
On December 21, 1995, the Partnership purchased a 34.0%
interest in a Media Play retail store in Apple Valley,
Minnesota for $1,414,060. The property was leased to The
Musicland Group, Inc. (MGI) under a Lease Agreement with a
primary term of 18 years and annual rental payments of
$139,587.
In December, 1996, the Partnership and MGI reached an
agreement in which MGI would buy out and terminate the Lease
Agreement by making a payment of $800,000, which was equal
to approximately two years' rent. The Partnership's share
of such payment was $272,000. A specialist in commercial
property leasing has been retained to locate a new tenant
for the property. While the property is vacant, the
Partnership is responsible for the real estate taxes and
other costs required to maintain the property.
As of December 31, 1997, based on an analysis of market
conditions in the area, it was determined the fair value of
the Partnership's interest in the Media Play was
approximately $748,000. In the fourth quarter of 1997, a
charge to operations for real estate impairment of $580,200
was recognized, which is the difference between the book
value at December 31, 1997 of $1,328,200 and the estimated
market value of $748,000. The charge was recorded against
the cost of the land, building and equipment.
On July 8, 1997, the Partnership purchased a parcel of land
in Livonia, Michigan for $1,074,384. The land is leased to
Champps under a Lease Agreement with a primary term of 20
years and annual rental payments of $75,207. Effective
January 3, 1998, the annual rent was increased to $115,496.
Simultaneously with the purchase of the land, the
Partnership entered into a Development Financing Agreement
under which the Partnership advanced funds to Champps for
the construction of a Champps Americana restaurant on the
site. Initially, the Partnership charged interest on the
advances at a rate of 7.0%. Effective January 3, 1998, the
interest rate was increased to 10.75%. On May 19, 1998,
after the development was completed, the Lease Agreement was
amended to require annual rental payments of $429,135.
Total acquisition costs, including the cost of the land,
were $4,150,061.
On August 28, 1998, the Partnership purchased a 25% interest
in a parcel of land in Centerville, Ohio for $462,747. The
land is leased to Americana Dining Corporation (ADC) under a
Lease Agreement with a primary term of 20 years and annual
rental payments of $32,392. Effective December 25, 1998,
the annual rent was increased to $48,588. Simultaneously
with the purchase of the land, the Partnership entered into
a Development Financing Agreement under which the
Partnership advanced funds to ADC for the construction of a
Champps Americana restaurant on the site. Initially, the
Partnership charged interest on the advances at a rate of
7%. Effective December 25, 1998, the interest rate was
increased to 10.5%. On January 27, 1999, after the
development was completed, the Lease Agreement was amended
to require annual rental payments of $101,365. The
Partnership's share of the total acquisition costs,
including the cost of the land, was $984,426. The remaining
interests in the Fund property are owned by AEI Real Estate
Fund XVII Limited Partnership, AEI Real Estate Fund XVIII
Limited Partnership and AEI Income & Growth Fund XXII
Limited Partnership, affiliates of the Partnership.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
Through December 31, 1998, the Partnership sold 40.7615% of
its interest in the Champps Americana restaurant in
Columbus, Ohio, in six separate transactions to unrelated
third parties. The Partnership received total net sale
proceeds of $1,383,508 which resulted in a total net gain of
$341,928. The total cost and related accumulated
depreciation of the interests sold was $1,087,502 and
$45,922, respectively. For the six months ended June 30,
1998, the net gain was $169,937.
Subsequent to June 30, 1999, the Partnership sold 41.9154%
of its interest in the ArbyOs restaurant in two separate
transactions to unrelated third parties. The Partnership
received net sale proceeds of approximately $430,000 which
resulted in a net gain of approximately $103,000.
During the first six months of 1998, the Partnership
distributed $241,683 of the net sale proceeds to the Limited
and General Partners as part of their regular quarterly
distributions which represented a return of capital of
$10.04 per Limited Partnership Unit.
(4) Payable to AEI Fund Management, Inc. -
AEI Fund Management, Inc. performs the administrative and
operating functions for the Partnership. The payable to AEI
Fund Management represents the balance due for those
services. This balance is non-interest bearing and
unsecured and is to be paid in the normal course of
business.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS
Results of Operations
For the six months ended June 30, 1999 and 1998, the
Partnership recognized rental income of $954,814 and $794,545,
respectively. During the same periods, the Partnership earned
investment income of $6,601 and $126,242, respectively. In 1999,
rental income increased primarily as a result of additional rent
received from the Champps Americana restaurants in Livonia,
Michigan and Centerville, Ohio. The increase in rental income
was partially offset by a decrease in investment income earned on
subscription and sale proceeds prior to the purchase of the
properties.
Musicland Group, Inc. (MGI), the lessee of the Media Play
retail store in Apple Valley, Minnesota experienced financial
difficulties and was aggressively restructuring its organization.
As part of the restructuring, the Partnership and MGI reached an
agreement in December, 1996 in which MGI would buy out and
terminate the Lease Agreement by making a payment of $800,000,
which is equal to approximately two years' rent. The
Partnership's share of such payment was $272,000. A specialist
in commercial property leasing has been retained to locate a new
tenant for the property. While the property is vacant, the
Partnership is responsible for the real estate taxes and other
costs required to maintain the property.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
As of December 31, 1997, based on an analysis of market
conditions in the area, it was determined the fair value of the
Partnership's interest in the Media Play was approximately
$748,000. In the fourth quarter of 1997, a charge to operations
for real estate impairment of $580,200 was recognized, which is
the difference between the book value at December 31, 1997 of
$1,328,200 and the estimated market value of $748,000. The
charge was recorded against the cost of the land, building and
equipment.
During the six months ended June 30, 1999 and 1998, the
Partnership paid Partnership administration expenses to
affiliated parties of $117,977 and $129,131, respectively. These
administration expenses include costs associated with the
management of the properties, processing distributions, reporting
requirements and correspondence to the Limited Partners. During
the same periods, the Partnership incurred Partnership
administration and property management expenses from unrelated
parties of $44,276 and $63,641, respectively. These expenses
represent direct payments to third parties for legal and filing
fees, direct administrative costs, outside audit and accounting
costs, taxes, insurance and other property costs. The decrease
in these expenses in 1999, when compared to 1998, is the result
of expenses incurred in 1998 related to the Media Play situation
discussed above.
As of June 30, 1999, the Partnership's cash distribution
rate was 6.5% on an annualized basis. Distributions of Net Cash
Flow to the General Partners are subordinated to the Limited
Partners as required in the Partnership Agreement. As a result,
99% of distributions and income were allocated to Limited
Partners and 1% to the General Partners.
Inflation has had a minimal effect on income from
operations. The Leases contain cost of living increases which
will result in an increase in rental income over the term of the
Leases. Inflation also may cause the Partnership's real estate
to appreciate in value. However, inflation and changing prices
may also have an adverse impact on the operating margins of the
properties' tenants which could impair their ability to pay rent
and subsequently reduce the Partnership's Net Cash Flow available
for distributions.
The Year 2000 issue is the result of computer systems that
use two digits rather than four to define the applicable year,
which may prevent such systems from accurately processing dates
ending in the Year 2000 and beyond. This could result in
computer system failures or disruption of operations, including,
but not limited to, an inability to process transactions, to send
or receive electronic data, or to engage in routine business
activities.
AEI Fund Management, Inc. (AEI) performs all management
services for the Partnership. In 1998, AEI completed an
assessment of its computer hardware and software systems and has
replaced or upgraded certain computer hardware and software using
the assistance of outside vendors. AEI has received written
assurance from the equipment and software manufacturers as to
Year 2000 compliance. The costs associated with Year 2000
compliance have not been, and are not expected to be, material.
The Partnership intends to monitor and communicate with
tenants regarding Year 2000 compliance, although there can be no
assurance that the systems of the various tenants will be Year
2000 compliant.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
Liquidity and Capital Resources
During the six months ended June 30, 1999, the
Partnership's cash balances decreased $303,380 mainly as a result
of cash used to purchase properties. Net cash provided by
operating activities decreased from $985,702 in 1998 to $797,070
in 1999 mainly as a result of net timing differences in the
collection of payments from the lessees and the payment of
expenses, which were partially offset by an increase in income
and a decrease in expenses in 1999.
The major components of the Partnership's cash flow from
investing activities are investments in real estate and proceeds
from the sale of real estate. During the six months ended June
30, 1999 and 1998, the Partnership expended $221,884 and
$1,927,989, respectively, to invest in real properties (inclusive
of acquisition expenses). During the same periods, the
Partnership generated cash flow from the sale of real estate of $-
0- and $635,663, respectively.
On July 8, 1997, the Partnership purchased a parcel of
land in Livonia, Michigan for $1,074,384. The land is leased to
Champps under a Lease Agreement with a primary term of 20 years
and annual rental payments of $75,207. Effective January 3,
1998, the annual rent was increased to $115,496. Simultaneously
with the purchase of the land, the Partnership entered into a
Development Financing Agreement under which the Partnership
advanced funds to Champps for the construction of a Champps
Americana restaurant on the site. Initially, the Partnership
charged interest on the advances at a rate of 7.0%. Effective
January 3, 1998, the interest rate was increased to 10.75%. On
May 19, 1998, after the development was completed, the Lease
Agreement was amended to require annual rental payments of
$429,135. Total acquisition costs, including the cost of the
land, were $4,150,061.
On August 28, 1998, the Partnership purchased a 25%
interest in a parcel of land in Centerville, Ohio for $462,747.
The land is leased to Americana Dining Corporation (ADC) under a
Lease Agreement with a primary term of 20 years and annual rental
payments of $32,392. Effective December 25, 1998, the annual
rent was increased to $48,588. Simultaneously with the purchase
of the land, the Partnership entered into a Development Financing
Agreement under which the Partnership advanced funds to ADC for
the construction of a Champps Americana restaurant on the site.
Initially, the Partnership charged interest on the advances at a
rate of 7%. Effective December 25, 1998, the interest rate was
increased to 10.5%. On January 27, 1999, after the development
was completed, the Lease Agreement was amended to require annual
rental payments of $101,365. The Partnership's share of the
total acquisition costs, including the cost of the land, was
$984,426. The remaining interests in the Fund property are owned
by AEI Real Estate Fund XVII Limited Partnership, AEI Real Estate
Fund XVIII Limited Partnership and AEI Income & Growth Fund XXII
Limited Partnership, affiliates of the Partnership.
Through December 31, 1998, the Partnership sold 40.7615%
of its interest in the Champps Americana restaurant in Columbus,
Ohio, in six separate transactions to unrelated third parties.
The Partnership received total net sale proceeds of $1,383,508
which resulted in a total net gain of $341,928. The total cost
and related accumulated depreciation of the interests sold was
$1,087,502 and $45,922, respectively. For the three months ended
June 30, 1998, the net gain was $169,937.
Subsequent to June 30, 1999, the Partnership sold 41.9154%
of its interest in the ArbyOs restaurant in two separate
transactions to unrelated third parties. The Partnership
received net sale proceeds of approximately $430,000 which
resulted in a net gain of approximately $103,000.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
During the first six months of 1998, the Partnership
distributed $241,683 of the net sale proceeds to the Limited and
General Partners as part of their regular quarterly distributions
which represented a return of capital of $10.04 per Limited
Partnership Unit.
After completion of the acquisition phase, the
Partnership's primary use of cash flow is distribution and
redemption payments to Partners. The Partnership declares its
regular quarterly distributions before the end of each quarter
and pays the distribution in the first week after the end of each
quarter. The Partnership attempts to maintain a stable
distribution rate from quarter to quarter. The redemption
payments generally are funded with cash that would normally be
paid as part of the regular quarterly distributions. As a
result, total distributions and distributions payable have
fluctuated from year to year due to cash used to fund redemption
payments. Effective January 1, 1999, the PartnershipOs
distribution rate was reduced from 7.5% to 7.0%. Effective April
1, 1999, the rate was reduced to 6.5%. As a result,
distributions were higher during 1998 when compared to the same
period in 1999.
The Partnership may acquire Units from Limited Partners
who have tendered their Units to the Partnership. Such Units may
be acquired at a discount. The Partnership is not obligated to
purchase in any year more than 5% of the number of Units
outstanding at the beginning of the year. In no event shall the
Partnership be obligated to purchase Units if, in the sole
discretion of the Managing General Partner, such purchase would
impair the capital or operation of the Partnership.
During 1999 and 1998, the Partnership did not redeem any
Units from the Limited Partners. In prior years, three Limited
Partners redeemed a total of 171.1 Partnership Units for
$154,021. The redemptions increase the remaining Limited
Partners' ownership interest in the Partnership.
The continuing rent payments from the properties, together
with cash generated from property sales, should be adequate to
fund continuing distributions and meet other Partnership
obligations on both a short-term and long-term basis.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There are no material pending legal proceedings to which
the Partnership is a party or of which the Partnership's
property is subject.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II - OTHER INFORMATION
(Continued)
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits -
Description
10.1 Purchase Agreement dated July 20,
1999 between the Partnership and
Catharine C. Whittenburg Testamentary
Trust relating to the property at 2719
Zelda Road, Montgomery, Alabama.
10.2 Co-Tenancy Agreement dated July 27,
1999 between the Partnership and
Catharine C. Whittenburg Testamentary
Trust relating to the property at 2719
Zelda Road, Montgomery, Alabama.
10.3 Purchase Agreement dated July 27,
1999 between the Partnership and Terry
Roland relating to the property at 2719
Zelda Road, Montgomery, Alabama.
10.4 Co-Tenancy Agreement dated July 28,
1999 between the Partnership and Terry
Roland relating to the property at 2719
Zelda Road, Montgomery, Alabama.
27 Financial Data Schedule for period
ended June 30, 1999.
b. Reports filed on Form 8-K - None.
SIGNATURES
In accordance with the requirements of the Exchange Act,
the Registrant has caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Dated: July 30, 1999 AEI Income & Growth Fund XXI
Limited Partnership
By: AEI Fund Management XXI, Inc.
Its: Managing General Partner
By: /s/ Robert P. Johnson
Robert P. Johnson
President
(Principal Executive Officer)
By: /s/ Mark E. Larson
Mark E. Larson
Chief Financial Officer
(Principal Accounting Officer)
PURCHASE AGREEMENT
Arby's Restaurant - Montgomery, AL
This AGREEMENT, entered into effective as of the 20th of July,
1999.
l. PARTIES. Seller is AEI Income & Growth Fund XXI Limited
Partnership which owns an undivided 87.7193% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is The
Catharine C. Whittenburg Testamentary Trust for J. A. Whittenburg
IV or Assigns ("Buyer"). Seller wishes to sell and Buyer wishes
to buy a portion as Tenant in Common of Seller's interest in the
Entire Property.
2. PROPERTY. The Property to be sold to Buyer in this transaction
consists of an undivided 21.5614 percentage interest
(hereinafter, simply the "Property") as Tenant in Common in the
Entire Property.
3. PURCHASE PRICE . The purchase price for this percentage
interest in the Entire Property is $250,000, all cash.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay $5,000
to Seller (which shall be deposited into escrow according to
the terms hereof) (the "First Payment"). The First Payment
will be credited against the purchase price when and if
escrow closes and the sale is completed.
(b) Buyer will deposit the balance of the purchase price,
$245,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. CLOSING DATE. Escrow shall close on or before August 2, 1999.
6. DUE DILIGENCE. Buyer will have until the expiration of the
tenth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Entire Property or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) A copy of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) A copy of an "as built" survey of the Entire Property
done concurrent with Seller's acquisition of the Property.
(d) Lease (as further set forth in paragraph 11(a) below) of
the Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
It is a contingency upon Seller's obligations hereunder that
two (2) copies of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the closing date.
Buyer may cancel this agreement for ANY REASON in its sole
discretion by delivering a cancellation notice, via first class
mail, return receipt requested, to Seller and escrow holder
before the expiration of the Review Period. Such notice shall be
deemed effective only upon receipt by Seller. If this Agreement
is not cancelled as set forth above, the First Payment shall be
non-refundable unless Seller shall default hereunder.
If Buyer cancels this Agreement as permitted under this
Section, except for any escrow cancellation fees and any
liabilities under the first paragraph of sections 6 of this
agreement (which will survive), Buyer (after execution of such
documents reasonably requested by Seller to evidence the
termination hereof) shall be returned its First Payment, and
Buyer will have absolutely no rights, claims or interest of any
type in connection with the Property or this transaction,
regardless of any alleged conduct by Seller or anyone else.
Unless this Agreement is canceled by Buyer pursuant to the
terms hereof, if Buyer fails to make the Second Payment, Seller
shall be entitled to retain the First Payment and Buyer
irrevocably will be deemed to be in default under this Agreement.
Seller may, at its option, retain the First Payment and declare
this Agreement null and void, in which event Buyer will be deemed
to have canceled this Agreement and relinquish all rights in and
to the Property or Seller may exercise its rights under Section
14 hereof. If this Agreement is not canceled and the Second
Payment is made when required, all of Buyer's conditions and
contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Seller and funds deposited
in escrow upon acceptance of this agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. A copy of this Agreement will be delivered to
the escrow holder and will serve as escrow instructions together
with the escrow holder's standard instructions and any additional
instructions required by the escrow holder to clarify its rights
and duties (and the parties agree to sign these additional
instructions). If there is any conflict between these other
instructions and this Agreement, this Agreement will control.
8. TITLE. Closing will be conditioned on the commitment of a
title company selected by Seller to issue an Owner's policy of
title insurance, dated as of the close of escrow, in an amount
equal to the purchase price, insuring that Buyer will own
insurable title to the Property subject only to: the title
company's standard exceptions; current real property taxes and
assessments; survey exceptions; the rights of parties in
possession pursuant to the lease defined in paragraph 11 below;
and other items of record disclosed to Buyer during the Review
Period.
Buyer shall be allowed ten (10) days after receipt of said
commitment for examination and the making of any objections to
marketability thereto, said objections to be made in writing or
deemed waived. If any objections are so made, the Seller shall
be allowed eighty (80) days to make such title marketable or in
the alternative to obtain a commitment for insurable title
insuring over Buyer's objections. If Seller shall decide to make
no efforts to make title marketable, or is unable to make title
marketable or obtain insurable title, (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof) Buyer's First Payment shall be returned and
this Agreement shall be null and void and of no further force and
effect. Seller has no obligation to spend any funds or make any
effort to satisfy Buyer's objections if any.
Pending satisfaction of Buyer's objections, the payments
hereunder required shall be postponed, but upon satisfaction of
Buyer's objections and within ten (10) days after written
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
notice of satisfaction of Buyer's objections to the Buyer, the
parties shall perform this Agreement according to its terms.
9. CLOSING COSTS. Seller will pay one-half of escrow fees, the
cost of the title commitment and any brokerage commissions
payable. The Buyer will pay the cost of issuing a Standard
Owners Title Insurance Policy in the full amount of the purchase
price, if Buyer shall decide to purchase the same. Buyer will
pay all recording fees, one-half of the escrow fees, and the cost
of an update to the Survey in Sellers possession (if an update is
required by Buyer.) Each party will pay its own attorney's fees
and costs to document and close this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(a) Because the Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, all
real estate taxes and installments of special assessments
due and payable in all years prior to the year of Closing
have been paid in full. Unpaid real estate taxes and unpaid
levied and pending special assessments existing on the date
of Closing shall be the responsibility of Buyer and Seller
in proportion to their respective Tenant in Common
interests, pro-rated, however, to the date of closing for
the period prior to closing, which shall be the
responsibility of Seller if Tenant shall not pay the same.
Seller and Buyer shall likewise pay all taxes due and
payable in the year after Closing and any unpaid
installments of special assessments payable therewith and
thereafter, if such unpaid levied and pending special
assessments and real estate taxes are not paid by any tenant
of the Entire Property.
(b) All income and all operating expenses from the Entire
Property shall be prorated between the parties and adjusted
by them as of the date of Closing. Seller shall be entitled
to all income earned and shall be responsible for all
expenses incurred prior to the date of Closing, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of all operating expenses of the Entire Property incurred on
and after the date of closing.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
(a) Seller represents and warrants as of this date that:
(i) Except for the lease in existence between AEI Income
and Growth Fund XXI Limited Partnership and AEI Institutional
Net Lease Fund '93 Limited Partnership (as "Landlord") and
RTM Gulf Coast, Inc. ("Tenant") dated May 31, 1995, Seller is not
aware of any leases of the Property. The above referenced
lease agreement has a first right of refusal in favor of the
Tenant as set forth in Article 35 of said lease agreement, which
right shall apply to any attempted disposition of the Property
by Buyer after this transaction. The above lease also has an
option to purchase in favor of the tenant as set forth in article
34 of said lease.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as
permitted in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
required, Seller agrees that it will not enter into any new
contracts that would materially affect the Property and be
binding
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
on Buyer after the Closing Date without Buyer's prior
consent, which will not be unreasonably withheld. However,
Buyer acknowledges that Seller retains the right both prior
to and after the Closing Date to freely transfer all or a
portion of Seller's remaining undivided interest in the
Entire Property, provided such sale shall not encumber the
Property being purchased by Buyer in violation of the terms
hereof or the contemplated Co-Tenancy Agreement.
12. DISCLOSURES.
(a) Seller has not received any notice of any material,
physical, or mechanical defects of the Entire Property,
including without limitation, the plumbing, heating, air
conditioning, ventilating, electrical system. To the best of
Seller's knowledge without inquiry, all such items are in
good operating condition and repair and in compliance with
all applicable governmental, zoning, and land use laws,
ordinances, regulations and requirements. If Seller shall
receive any notice to the contrary prior to Closing, Seller
will inform Buyer prior to Closing.
(b) Seller has not received any notice that the use and
operation of the Entire Property is not in full compliance
with applicable building codes, safety, fire, zoning, and
land use laws, and other applicable local, state and federal
laws, ordinances, regulations and requirements. If Seller
shall receive any notice to the contrary prior to Closing,
Seller will inform Buyer prior to Closing.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the Tenant from using and operating the Entire
Property after the Closing in the manner in which the Entire
Property has been used and operated prior to the date of
this Agreement. If Seller shall receive any notice to the
contrary prior to Closing, Seller will inform Buyer prior to
Closing.
(d) Seller has not received any notice that the Entire
Property is in violation of any federal, state or local law,
ordinance, or regulations relating to industrial hygiene or
the environmental conditions on, under, or about the Entire
Property, including, but not limited to, soil, and
groundwater conditions. To the best of Seller's knowledge,
there is no proceeding or inquiry by any governmental
authority with respect to the presence of Hazardous
Materials on the Entire Property or the migration of
Hazardous Materials from or to other property. Buyer agrees
that Seller will have no liability of any type to Buyer or
Buyer's successors, assigns, or affiliates in connection
with any Hazardous Materials on or in connection with the
Entire Property either before or after the Closing Date,
except such Hazardous Materials on or in connection with the
Entire Property arising out of Seller's gross negligence or
intentional misconduct. If Seller shall receive any notice
to the contrary prior to Closing, Seller will inform Buyer
prior to Closing.
(e) Buyer agrees that it shall be purchasing the Property
in its then present condition, as is, where is, and Seller
has no obligations to construct or repair any improvements
thereon or to perform any other act regarding the Property,
except as expressly provided herein.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Entire Property and such
financial information on the Lessee and Guarantors of the
Lease as Buyer or its advisors shall request, if in Seller's
possession, Buyer is relying solely on its own investigation
of the Property and not on any information provided by
Seller or to be provided except as set forth herein. Buyer
further acknowledges that the information provided and to be
provided by Seller with respect to the Property, the Entire
Property and to the Lessee and Guarantors of Lease was
obtained from a variety of sources and Seller neither (a)
has made independent investigation or verification of such
information,
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
or (b) makes any representations as to the accuracy or
completeness of such information except as herein set forth.
The sale of the Property as provided for herein is made on
an "AS IS" basis, and Buyer expressly acknowledges that, in
consideration of the agreements of Seller herein, except as
otherwise specified herein in paragraph 11(a) and (b) above
and this paragraph 12, Seller makes no Warranty or
representation, Express or Implied, or arising by operation
of law, including, but not limited to, any warranty of
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, or fitness for a
particular purpose, in respect of the Property.
The provisions (d) - (f) above shall survive Closing.
13. CLOSING.
(a) Before the closing date, Seller will deposit into
escrow an executed special warranty deed warranting title
against lawful claims by, through, or under a conveyance
from Seller, but not further or otherwise, conveying
insurable title of the Property to Buyer, subject to the
exceptions contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign and
deliver to the escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is
located; cause the title company to commit to issue the
title policy; immediately deliver to Seller the portion of
the purchase price deposited into escrow by cashier's check
or wire transfer (less debits and prorations, if any);
deliver to Seller and Buyer a signed counterpart of the
escrow holder's certified closing statement and take all
other actions necessary to close escrow.
14. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights
and claims and Seller will be relieved of all obligations and
will be entitled to retain all monies heretofore paid by the
Buyer. In addition, Seller shall retain all remedies available
to Seller at law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action or any other
claim, action or proceeding of any type in connection with the
Property or this or any other transaction involving the Property,
and will not do anything to affect title to the Property or
hinder, delay or prevent any other sale, lease or other
transaction involving the Property (any and all of which will be
null and void), unless: it has paid the First Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. Provided,
however, that in no event shall Seller be liable for any actual,
punitive, consequential or speculative damages arising out of any
default by Seller hereunder.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
acts, deeds and assurances as Seller or the Title Company
may require and be reasonable in order to consummate the
transactions contemplated herein.
(ii) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
(iv) Buyer certifies that the office of the Trustee shall
consist of five Trustees, any three of whom may act on any
matter.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN.
(a) If, prior to closing, the Property or any part thereof
should be destroyed or further damaged by fire, the
elements, or any cause, due to events occurring subsequent
to the date of this Agreement to the extent that the cost of
repair exceeds $10,000.00, this Agreement shall become null
and void, at Buyer's option exercised, if at all, by written
notice to Seller within ten (10) days after Buyer has
received written notice from Seller of said destruction or
damage. Seller, however, shall have the right to adjust or
settle any insured loss until (i) all contingencies set
forth in Paragraph 6 hereof have been satisfied, or waived;
and (ii) any ten-day period provided for above in this
Subparagraph 16a for Buyer to elect to terminate this
Agreement has expired or Buyer has, by written notice to
Seller, waived Buyer's right to terminate this Agreement.
If Buyer elects to proceed and to consummate the purchase
despite said damage or destruction, there shall be no
reduction in or abatement of the purchase price, and Seller
shall assign to Buyer the Seller's right, title, and
interest in and to all insurance proceeds (pro-rata in
relation to the Entire Property) resulting from said damage
or destruction to the extent that the same are payable with
respect to damage to the Property, subject to rights of any
Tenant of the Entire Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(b) If, prior to closing, the Property, or any part
thereof, is taken by eminent domain, this Agreement shall
become null and void, at Buyer's option. If Buyer elects to
proceed and to consummate the purchase despite said taking,
there shall be no reduction in, or abatement of, the
purchase price, and Seller shall assign to Buyer the
Seller's right, title, and interest in and to any award
made, or to be made, in the condemnation proceeding pro-rata
in relation to the Entire Property, subject to rights of any
Tenant of the Entire Property.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 16a or 16b, the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof).
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
17. BUYER'S 1031 TAX FREE EXCHANGE.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish a tax free
exchange, Buyer acknowledges that Seller has made no
representations, warranties, or agreements to Buyer or Buyer's
agents that the transaction contemplated by the Agreement will
qualify for such tax treatment, nor has there been any reliance
thereon by Buyer respecting the legal or tax implications of the
transactions contemplated hereby. Buyer further represents that
it has sought and obtained such third party advice and counsel as
it deems necessary in regards to the tax implications of this
transaction.
Buyer wishes to novate/assign the ownership rights and
interest of this Purchase Agreement to Amarillo National Bank
will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Amarillo National Bank will be an independent third party
purchasing the ownership interest in subject property from Seller
and selling the ownership interest in subject property to Buyer
under the same terms and conditions as documented in this
Purchase Agreement. Buyer asks the Seller, and Seller agrees to
cooperate in the perfection of such an exchange if at no
additional cost or expense to Seller or delay in time. Buyer
hereby indemnifies and holds Seller harmless from any claims
and/or actions resulting from said exchange. Pursuant to the
direction of Amarillo National Bank, Seller will deed the
property to Buyer.
18. CANCELLATION
If any party elects to cancel this Contract because of any
breach by another party or because escrow fails to close by
the agreed date, the party electing to cancel shall deliver
to escrow agent a notice containing the address of the party
in breach and stating that this Contract shall be cancelled
unless the breach is cured within 13 days following the
delivery of the notice to the escrow agent. Within three
days after receipt of such notice, the escrow agent shall
send it by United States Mail to the party in breach at the
address contained in the Notice and no further notice shall
be required. If the breach is not cured within the 13 days
following the delivery of the notice to the escrow agent,
this Contract shall be cancelled.
19. MISCELLANEOUS.
(a) This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement the prevailing party will
be entitled to recover attorney's fees and costs. This is
an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
(b) If this escrow has not closed by August 2, 1999,
through no fault of Seller, Seller may either, at its
election, extend the closing date or exercise any remedy
available to it by law, including terminating this
Agreement.
(c) Funds to be deposited or paid by Buyer must be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
(d) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery to the party at his or its address set forth below,
or to such other address as such party may hereafter
designate by written notice to the other party.
If to Seller:
Attention: Robert P. Johnson
AEI Institutional Net Lease Fund '93 Limited
Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
The Catharine C. Whittenburg Testamentary Trust for
J. A. Whittenburg IV or Assigns
Post Office Box 26
Amarillo, TX 79105
When accepted, this offer will be a binding agreement for
valid and sufficient consideration which will bind and benefit
Buyer, Seller and their respective successors and assigns. Buyer
is submitting this offer by signing a copy of this offer and
delivering it to Seller. Seller has five (5) business days from
receipt within which to accept this offer.
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Ageement effective as of the day and year above first written.
BUYER: The Catharine C. Whittenburg Testamentary Trust for
J.A. Whittenburg IV or Asigns
By: /s/ Diane E Bowes
A Trustee
Diane E Bowes
(Type or Print Name)
By: /s/ Jack F Turner
A Trustee
Jack F Turner
(Type or Print Name)
By J.A. Whittenburg IV
A Trustee
J. A. Whittenburg IV
(Type or Print Name)
By:
A Trustee
(Type or Print Name)
By:
A Trustee
(Type or Print Name)
Buyer Initial: /s/ DEB /s/ JFT /s/ JAW IV
Purchase Agreement for Arby's Restaurant-Montgomery, AL
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
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.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's Restaurant - Montgomery, AL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 27th day of July, 1999, by and
between The Catharine C. Whittenburg Testamentary Trust for J. A.
Whittenburg IV or Assigns as joint tenants, (hereinafter called
"Whittenburg"), and AEI Income & Growth Fund XXI Limited
Partnership (hereinafter called "Fund XXI") Whittenburg, 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 66.1579% interest
in and to, and Whittenburg 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 Whittenburg'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 Whittenburg 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.
Whittenburg 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 Whittenburg As long as Fund XXI owns an
interest in the Premises, only Fund XXI may obligate Whittenburg
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 Whittenburg 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
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
endorsements adding Co-Tenants to said policies from lessee
within 30 days of commencement 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
Whittenburg under this Agreement, and may pay to itself the
amount of Whittenburg's share of any reasonable expenses of the
Premises which are not paid by Whittenburg 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
Whittenburg'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.
Whittenburg has no requirement to, but has, nonetheless elected
to retain, and agrees to annually reimburse, Fund XXI in the
amount of $ 826 [changed to $700 to conform to the facts /s/ DEB
/s/ JFT /s/ JAW IV /s/ RPJ] for the expenses, direct and
indirect, incurred by Fund XXI in providing Whittenburg with
quarterly accounting and distributions of Whittenburg's share of
net income and for tracking, reporting and assessing the
calculation of Whittenburg's share of operating expenses incurred
from the Premises. This invoice amount shall be pro-rated for
partial years and Whittenburg authorizes Fund XXI to deduct such
amount from Whittenburg's share of revenue from the Premises.
Whittenburg 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 Whittenburg 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, Whittenburg shall be
entitled to receive 21.5614% 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
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
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 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. Whittenburg agrees to notify Fund XXI upon the
appointment of any successor trustee, or any amendment of the
Catharine C Whittenburg Testamentary Trust affecting the powers
of the trustees to manage or dispose of the Catharine C
Whittenburg Testamentary Trust's 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 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
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
If to Whittenburg:
The Catharine C. Whittenburg Testamentary Trust for
J. A. Whittenburg IV or Assigns
Post Office Box 26
Amarillo, TX 79105
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.
12. Whittenburg certifies that the office of the Trustee
shall consist of five Trustees, any three of whom may act on any
matter.
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
The Catharine C. Whittenburg Testamentary Trust for J. A.
Whittenburg IV or Assigns
By:/s/ Diane E Bowes
A Trustee
Diane E Bowes
(Type or Print Name)
STATE OF TEXAS)
) ss
COUNTY OF POTTER)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 20th day of July,
1999, Diane E Bowes who executed the foregoing instrument in said
capacity.
/s/ Carol E Scott
Notary Public [notary seal]
and
By:/s/ Jack F Turner
A Trustee
Jack F Turner
(Type or Print Name)
STATE OF TEXAS)
) ss
COUNTY OF POTTER)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 20th day of July,
1999, Jack F Turner who executed the foregoing instrument in said
capacity.
/s/ Carol E Scott
Notary Public [notary seal]
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
and
By:/s/ J.A. Whittenburg IV
A Trustee
J.A. Whittenburg IV
(Type or Print Name)
STATE OF )
) ss
COUNTY OF )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this _______ day of
________________, 1999, ___________ who executed the foregoing
instrument in said capacity.
Notary Public
and
By:
A Trustee
(Type or Print Name)
STATE OF )
) ss
COUNTY OF )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this _______ day of
________________, 1999, ___________ who executed the foregoing
instrument in said capacity.
Notary Public
and
By:
A Trustee
(Type or Print Name)
STATE OF )
) ss
COUNTY OF )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this _______ day of
________________, 1999, ___________ who executed the foregoing
instrument in said capacity.
Notary Public
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
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 27th 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/ Linda A Bisdorf
Notary Public
[notary seal]
Co-Tenant Initial: /s/ DEB /s/ JFT /s/ JAW IV
Co-Tenancy Agreement for Arby's-Montgomery, AL
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.
PURCHASE AGREEMENT
Arby's Restaurant - Montgomery, AL
This AGREEMENT, entered into effective as of the 27 of July,
1999.
l. PARTIES. Seller is AEI Income & Growth Fund XXI Limited
Partnership which owns an undivided 66.1579% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is Roland
Terry ("Buyer"). Seller wishes to sell and Buyer wishes to buy a
portion of Seller's tenant in common interest in the Entire
Property.
2. PROPERTY. The Property to be sold to Buyer in this transaction
consists of an undivided 20.3540 percentage interest
(hereinafter, simply the "Property") as Tenant in Common in the
Entire Property.
3. PURCHASE PRICE . The purchase price for this percentage
interest in the Entire Property is $236,000, all cash.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
Buyer will deposit the purchase price, $236,000, into
escrow in sufficient time to allow escrow to close on the
closing date.
5. CLOSING DATE. Escrow shall close on or before August 5, 1999.
6. DUE DILIGENCE. Buyer will have until the expiration of the
tenth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Entire Property or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) A copy of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) A copy of an "as built" survey of the Entire Property
done concurrent with Seller's acquisition of the Property.
(d) Lease (as further set forth in paragraph 11(a) below) of
the Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
It is a contingency upon Seller's obligations hereunder that
two (2) copies of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the closing date.
Buyer may cancel this agreement for ANY REASON in its sole
discretion by delivering a cancellation notice, via first class
mail, return receipt requested, to Seller and escrow holder
before the expiration of the Review Period. Such notice shall be
deemed effective only upon
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
receipt by Seller. If this Agreement is not cancelled as set
forth above, the First Payment shall be non-refundable unless
Seller shall default hereunder.
If Buyer cancels this Agreement as permitted under this
Section, except for any escrow cancellation fees and any
liabilities under the first paragraph of sections 6 of this
agreement (which will survive), Buyer (after execution of such
documents reasonably requested by Seller to evidence the
termination hereof) shall be returned its First Payment, and
Buyer will have absolutely no rights, claims or interest of any
type in connection with the Property or this transaction,
regardless of any alleged conduct by Seller or anyone else.
Unless this Agreement is canceled by Buyer pursuant to the
terms hereof, if Buyer fails to make the Second Payment, Seller
shall be entitled to retain the First Payment and Buyer
irrevocably will be deemed to be in default under this Agreement.
Seller may, at its option, retain the First Payment and declare
this Agreement null and void, in which event Buyer will be deemed
to have canceled this Agreement and relinquish all rights in and
to the Property or Seller may exercise its rights under Section
14 hereof. If this Agreement is not canceled and the Second
Payment is made when required, all of Buyer's conditions and
contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Seller and funds deposited
in escrow upon acceptance of this agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. A copy of this Agreement will be delivered to
the escrow holder and will serve as escrow instructions together
with the escrow holder's standard instructions and any additional
instructions required by the escrow holder to clarify its rights
and duties (and the parties agree to sign these additional
instructions). If there is any conflict between these other
instructions and this Agreement, this Agreement will control.
8. TITLE. Closing will be conditioned on the commitment of a
title company selected by Seller to issue an Owner's policy of
title insurance, dated as of the close of escrow, in an amount
equal to the purchase price, insuring that Buyer will own
insurable title to the Property subject only to: the title
company's standard exceptions; current real property taxes and
assessments; survey exceptions; the rights of parties in
possession pursuant to the lease defined in paragraph 11 below;
and other items of record disclosed to Buyer during the Review
Period.
Buyer shall be allowed ten (10) days after receipt of said
commitment for examination and the making of any objections to
marketability thereto, said objections to be made in writing or
deemed waived. If any objections are so made, the Seller shall
be allowed eighty (80) days to make such title marketable or in
the alternative to obtain a commitment for insurable title
insuring over Buyer's objections. If Seller shall decide to make
no efforts to make title marketable, or is unable to make title
marketable or obtain insurable title, (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof) Buyer's First Payment shall be returned and
this Agreement shall be null and void and of no further force and
effect. Seller has no obligation to spend any funds or make any
effort to satisfy Buyer's objections if any.
Pending satisfaction of Buyer's objections, the payments
hereunder required shall be postponed, but upon satisfaction of
Buyer's objections and within ten (10) days after written notice
of satisfaction of Buyer's objections to the Buyer, the parties
shall perform this Agreement according to its terms.
9. CLOSING COSTS. Seller will pay one-half of escrow fees, the
cost of the title commitment and any brokerage commissions
payable. The Buyer will pay the cost of issuing a Standard
Owners Title Insurance Policy in the full amount of the purchase
price, if Buyer shall decide to purchase the same. Buyer will
pay all recording fees, one-half of the escrow fees, and the cost
of
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
an update to the Survey in Sellers possession (if an update is
required by Buyer.) Each party will pay its own attorney's fees
and costs to document and close this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(a) Because the Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, all
real estate taxes and installments of special assessments
due and payable in all years prior to the year of Closing
have been paid in full. Unpaid real estate taxes and unpaid
levied and pending special assessments existing on the date
of Closing shall be the responsibility of Buyer and Seller
in proportion to their respective Tenant in Common
interests, pro-rated, however, to the date of closing for
the period prior to closing, which shall be the
responsibility of Seller if Tenant shall not pay the same.
Seller and Buyer shall likewise pay all taxes due and
payable in the year after Closing and any unpaid
installments of special assessments payable therewith and
thereafter, if such unpaid levied and pending special
assessments and real estate taxes are not paid by any tenant
of the Entire Property.
(b) All income and all operating expenses from the Entire
Property shall be prorated between the parties and adjusted
by them as of the date of Closing. Seller shall be entitled
to all income earned and shall be responsible for all
expenses incurred prior to the date of Closing, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of all operating expenses of the Entire Property incurred on
and after the date of closing.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
(a) Seller represents and warrants as of this date that:
(i) Except for the lease in existence between AEI Income
and Growth Fund XXI Limited Partnership and AEI Institutional
Net Lease Fund '93 Limited Partnership (as "Landlord") and
RTM Gulf Coast, Inc. ("Tenant") dated May 31, 1995, Seller is not
aware of any leases of the Property. The above referenced
lease agreement has a first right of refusal in favor of the
Tenant as set forth in Article 35 of said lease agreement, which
right shall apply to any attempted disposition of the Property
by Buyer after this transaction. The above lease also has an
option to purchase in favor of the tenant as set forth in article
34 of said lease.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as
permitted in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
required, Seller agrees that it will not enter into any new
contracts that would materially affect the Property and be
binding on Buyer after the Closing Date without Buyer's
prior consent, which will not be unreasonably withheld.
However, Buyer acknowledges that Seller retains the right
both prior to and after the Closing Date to freely transfer
all or a portion of Seller's remaining undivided interest in
the Entire Property, provided such sale shall not encumber
the Property being purchased by Buyer in violation of the
terms hereof or the contemplated Co-Tenancy Agreement.
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
12. DISCLOSURES.
(a) Seller has not received any notice of any material,
physical, or mechanical defects of the Entire Property,
including without limitation, the plumbing, heating, air
conditioning, ventilating, electrical system. To the best of
Seller's knowledge without inquiry, all such items are in
good operating condition and repair and in compliance with
all applicable governmental, zoning, and land use laws,
ordinances, regulations and requirements. If Seller shall
receive any notice to the contrary prior to Closing, Seller
will inform Buyer prior to Closing.
(b) Seller has not received any notice that the use and
operation of the Entire Property is not in full compliance
with applicable building codes, safety, fire, zoning, and
land use laws, and other applicable local, state and federal
laws, ordinances, regulations and requirements. If Seller
shall receive any notice to the contrary prior to Closing,
Seller will inform Buyer prior to Closing.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the Tenant from using and operating the Entire
Property after the Closing in the manner in which the Entire
Property has been used and operated prior to the date of
this Agreement. If Seller shall receive any notice to the
contrary prior to Closing, Seller will inform Buyer prior to
Closing.
(d) Seller has not received any notice that the Entire
Property is in violation of any federal, state or local law,
ordinance, or regulations relating to industrial hygiene or
the environmental conditions on, under, or about the Entire
Property, including, but not limited to, soil, and
groundwater conditions. To the best of Seller's knowledge,
there is no proceeding or inquiry by any governmental
authority with respect to the presence of Hazardous
Materials on the Entire Property or the migration of
Hazardous Materials from or to other property. Buyer agrees
that Seller will have no liability of any type to Buyer or
Buyer's successors, assigns, or affiliates in connection
with any Hazardous Materials on or in connection with the
Entire Property either before or after the Closing Date,
except such Hazardous Materials on or in connection with the
Entire Property arising out of Seller's gross negligence or
intentional misconduct. If Seller shall receive any notice
to the contrary prior to Closing, Seller will inform Buyer
prior to Closing.
(e) Buyer agrees that it shall be purchasing the Property
in its then present condition, as is, where is, and Seller
has no obligations to construct or repair any improvements
thereon or to perform any other act regarding the Property,
except as expressly provided herein.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Entire Property and such
financial information on the Lessee and Guarantors of the
Lease as Buyer or its advisors shall request, if in Seller's
possession, Buyer is relying solely on its own investigation
of the Property and not on any information provided by
Seller or to be provided except as set forth herein. Buyer
further acknowledges that the information provided and to be
provided by Seller with respect to the Property, the Entire
Property and to the Lessee and Guarantors of Lease was
obtained from a variety of sources and Seller neither (a)
has made independent investigation or verification of such
information, or (b) makes any representations as to the
accuracy or completeness of such information except as
herein set forth. The sale of the Property as provided for
herein is made on an "AS IS" basis, and Buyer expressly
acknowledges that, in consideration of the agreements of
Seller herein, except as otherwise specified herein in
paragraph 11(a) and (b) above and this paragraph 12, Seller
makes no Warranty or representation, Express or Implied, or
arising by operation of law, including, but not limited to,
any warranty of
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, or fitness for a
particular purpose, in respect of the Property.
The provisions (d) - (f) above shall survive Closing.
13. CLOSING.
(a) Before the closing date, Seller will deposit into
escrow an executed special warranty deed warranting title
against lawful claims by, through, or under a conveyance
from Seller, but not further or otherwise, conveying
insurable title of the Property to Buyer, subject to the
exceptions contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign and
deliver to the escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is
located; cause the title company to commit to issue the
title policy; immediately deliver to Seller the portion of
the purchase price deposited into escrow by cashier's check
or wire transfer (less debits and prorations, if any);
deliver to Seller and Buyer a signed counterpart of the
escrow holder's certified closing statement and take all
other actions necessary to close escrow.
14. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights
and claims and Seller will be relieved of all obligations and
will be entitled to retain all monies heretofore paid by the
Buyer. In addition, Seller shall retain all remedies available
to Seller at law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action or any other
claim, action or proceeding of any type in connection with the
Property or this or any other transaction involving the Property,
and will not do anything to affect title to the Property or
hinder, delay or prevent any other sale, lease or other
transaction involving the Property (any and all of which will be
null and void), unless: it has paid the First Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. Provided,
however, that in no event shall Seller be liable for any actual,
punitive, consequential or speculative damages arising out of any
default by Seller hereunder.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as Seller or the Title Company may require and be
reasonable in order to consummate the transactions
contemplated herein.
(ii) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN.
(a) If, prior to closing, the Property or any part thereof
should be destroyed or further damaged by fire, the
elements, or any cause, due to events occurring subsequent
to the date of this Agreement to the extent that the cost of
repair exceeds $10,000.00, this Agreement shall become null
and void, at Buyer's option exercised, if at all, by written
notice to Seller within ten (10) days after Buyer has
received written notice from Seller of said destruction or
damage. Seller, however, shall have the right to adjust or
settle any insured loss until (i) all contingencies set
forth in Paragraph 6 hereof have been satisfied, or waived;
and (ii) any ten-day period provided for above in this
Subparagraph 16a for Buyer to elect to terminate this
Agreement has expired or Buyer has, by written notice to
Seller, waived Buyer's right to terminate this Agreement.
If Buyer elects to proceed and to consummate the purchase
despite said damage or destruction, there shall be no
reduction in or abatement of the purchase price, and Seller
shall assign to Buyer the Seller's right, title, and
interest in and to all insurance proceeds (pro-rata in
relation to the Entire Property) resulting from said damage
or destruction to the extent that the same are payable with
respect to damage to the Property, subject to rights of any
Tenant of the Entire Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(b) If, prior to closing, the Property, or any part
thereof, is taken by eminent domain, this Agreement shall
become null and void, at Buyer's option. If Buyer elects to
proceed and to consummate the purchase despite said taking,
there shall be no reduction in, or abatement of, the
purchase price, and Seller shall assign to Buyer the
Seller's right, title, and interest in and to any award
made, or to be made, in the condemnation proceeding pro-rata
in relation to the Entire Property, subject to rights of any
Tenant of the Entire Property.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 16a or 16b, the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof).
17. BUYER'S 1031 TAX FREE EXCHANGE.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish a tax free
exchange, Buyer acknowledges that Seller has made no
representations, warranties, or agreements to Buyer or Buyer's
agents that the transaction contemplated by the Agreement will
qualify for such tax treatment, nor has there been any reliance
thereon by Buyer respecting the legal or tax implications of the
transactions contemplated hereby. Buyer further represents that
it has sought and obtained such third party advice and counsel as
it deems necessary in regards to the tax implications of this
transaction.
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
Buyer wishes to novate/assign the ownership rights and
interest of this Purchase Agreement to Metro Exchange Corporation
will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby Metro
Exchange Corporation will be an independent third party
purchasing the ownership interest in subject property from Seller
and selling the ownership interest in subject property to Buyer
under the same terms and conditions as documented in this
Purchase Agreement. Buyer asks the Seller, and Seller agrees to
cooperate in the perfection of such an exchange if at no
additional cost or expense to Seller or delay in time. Buyer
hereby indemnifies and holds Seller harmless from any claims
and/or actions resulting from said exchange. Pursuant to the
direction of Metro Exchange Corporation, Seller will deed the
property to Buyer.
18. CANCELLATION
If any party elects to cancel this Contract because of any
breach by another party or because escrow fails to close by
the agreed date, the party electing to cancel shall deliver
to escrow agent a notice containing the address of the party
in breach and stating that this Contract shall be cancelled
unless the breach is cured within 13 days following the
delivery of the notice to the escrow agent. Within three
days after receipt of such notice, the escrow agent shall
send it by United States Mail to the party in breach at the
address contained in the Notice and no further notice shall
be required. If the breach is not cured within the 13 days
following the delivery of the notice to the escrow agent,
this Contract shall be cancelled.
19. MISCELLANEOUS.
(a) This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement the prevailing party will
be entitled to recover attorney's fees and costs. This is
an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
(b) If this escrow has not closed by August 5, 1999,
through no fault of Seller, Seller may either, at its
election, extend the closing date or exercise any remedy
available to it by law, including terminating this
Agreement.
(c) Funds to be deposited or paid by Buyer must be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
(d) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery to the party at his or its address set forth below,
or to such other address as such party may hereafter
designate by written notice to the other party.
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
If to Seller:
Attention: Robert P. Johnson
AEI Income & Growth Fund XXI Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Roland Terry
154 Little Hendricks Pk #20612
Jasper, GA 30143
When accepted, this offer will be a binding agreement for
valid and sufficient consideration which will bind and benefit
Buyer, Seller and their respective successors and assigns. Buyer
is submitting this offer by signing a copy of this offer and
delivering it to Seller. Seller has five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: Roland Terry
By:/s/ Roland Terry
Roland Terry
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
SELLER: 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
Buyer Initial: /s/ RT
Purchase Agreement for Arby's Restaurant-Montgomery, AL
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.
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.
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<NAME> AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
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<CURRENT-ASSETS> 254,266
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0
0
<COMMON> 0
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<TOTAL-LIABILITY-AND-EQUITY> 17,973,626
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