PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Hometown Buffet Restaurant - Tucson, AZ)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 17th day of June, 1999, by
and between Xxxx X. Xxxxx and Xxxxx X. Xxxxx (hereinafter
called "Xxxxx"), and AEI Net Lease Income & Growth Fund XIX
Limited Partnership (hereinafter called "Fund XIX") Xxxxx,
Fund XIX (and any other Owner in Fee where the context so
indicates) being hereinafter sometimes collectively called
"Co-Tenants" and referred to in the neuter gender).
WITNESSETH:
WHEREAS, Fund XIX presently owns an undivided 2.2074%
interest in and to, and Xxxxx presently owns an undivided
19.9235% interest in and to, and Xxx Xxxxx presently owns an
undivided 12.6016% interest in and to, and Xxxxxx X.
Xxxxxxxx, as trustee presently owns an undivided 11.8047%
interest in and to, and Xxxxx Xxxxxx, Xx. and Xxxxx Xxx
Xxxxxx presently own an undivided 9.9617% interest in and
to, and Xxxxxxxx X. Xxxxxx, as trustee presently owns an
undivided 7.4713% interest in and to, and Xxxxx X. Xxxxxx,
as trustee presently owns an undivided 7.4713% interest in
and to, and Xxxxxxxx Xxxxxxx presently owns an undivided
15.80% interest in and to, and Xxxxx X. Xxxxx and Xxxx X.
Xxxxx presently own an undivided 12.7585% interest in and to
the land, situated in the City of Tucson, County of Pima,
and State of AZ, (legally described upon Exhibit A attached
hereto and hereby made a part hereof) and in and to the
improvements located thereon (hereinafter called
"Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Xxxxx'x
interest by Fund XIX; the continued leasing of space within
the Premises; for the distribution of income from and the
pro-rata sharing in expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Xxxxx of
an undivided interest in and to the Premises, for at least
One Dollar ($1.00) and other good and valuable consideration
by the parties hereto to one another in hand paid, the
receipt and sufficiency of which are hereby acknowledged,
and of the mutual covenants and agreements herein contained,
it is hereby agreed by and between the parties hereto, as
follows:
1. The operation and management of the Premises shall be
delegated to Fund XIX, or its designated agent, successors
or assigns. Provided, however, if Fund XIX shall sell all of
its interest in the Premises, the duties and obligations of
Fund XIX respecting management of the Premises as set forth
herein, including but not limited to paragraphs 2, 3, and 4
hereof, shall be exercised by the holder or holders of a
majority undivided co-tenancy interest in the Premises.
Except as hereinafter expressly provided to the contrary,
each of the parties hereto agrees to be bound by the
decisions of Fund XIX with respect to all administrative,
operational and management matters of the property
comprising the Premises, including but not limited to the
management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XIX as their sole and
exclusive agent to deal with, and Fund XIX 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 XIX, 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
Xxxxx. As long as Fund XIX owns an interest in the Premises,
only Fund XIX may obligate Xxxxx with respect to any expense
for the Premises.
Co-Tenant Initial: /s/ JC /s/ KC
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
As further set forth in paragraph 2 hereof, Fund XIX agrees
to require any lessee of the Premises to name Xxxxx as an
insured or additional insured in all insurance policies
provided for, or contemplated by, any lease on the Premises.
Fund XIX shall use its best efforts to obtain endorsements
adding Co-Tenants to said policies from lessee within 30
days of commencement of this agreement. In any event, Fund
XIX shall distribute any insurance proceeds it may receive,
to the extent consistent with any lease on the Premises, to
the Co-Tenants in proportion to their respective ownership
of the Premises.
2. Income and expenses shall be allocated among the Co-
Tenants in proportion to their respective share(s) of
ownership. Shares of net income shall be pro-rated for any
partial calendar years included within the term of this
Agreement. Fund XIX may offset against, pay to itself and
deduct from any payment due to Xxxxx under this Agreement,
and may pay to itself the amount of Xxxxx'x share of any
reasonable expenses of the Premises which are not paid by
Xxxxx to Fund XIX or its assigns, within ten (10) days after
demand by Fund XIX. In the event there is insufficient
operating income from which to deduct Xxxxx'x unpaid share
of operating expenses, Fund XIX may pursue any and all legal
remedies for collection.
Operating Expenses shall include all normal operating
expense, including but not limited to: maintenance,
utilities, supplies, labor, management, advertising and
promotional expenses, salaries and wages of rental and
management personnel, leasing commissions to third parties,
a monthly accrual to pay insurance premiums, real estate
taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal
fees and accounting fees, but excluding all operating
expenses paid by tenant under terms of any lease agreement
of the Premises.
Xxxxx has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XIX in the
amount of $1,190 for the expenses, direct and indirect,
incurred by Fund XIX in providing Xxxxx with quarterly
accounting and distributions of Xxxxx'x share of net income
and for tracking, reporting and assessing the calculation of
Xxxxx'x share of operating expenses incurred from the
Premises. This invoice amount shall be pro-rated for partial
years and Xxxxx authorizes Fund XIX to deduct such amount
from Xxxxx'x share of revenue from the Premises. Xxxxx may
terminate this agreement 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 XIX pursuant to Section 1
hereof. Fund XIX may terminate its obligation under this
paragraph upon 30 days notice to Xxxxx 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 XIX's principal office, and each Co-
Tenant shall have access to such books and may inspect and
copy any part thereof during normal business hours. Within
ninety (90) days after the end of each calendar year during
the term hereof, Fund XIX shall prepare an accurate income
statement for the ownership of the Premises for said
calendar year and shall furnish copies of the same to all Co-
Tenants. Quarterly, as its share, Xxxxx shall be entitled to
receive 19.9235% 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
Co-Tenant Initial: /s/ JC /s/ KC
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
written request therefor from Fund XIX, shall, within
fifteen (15) business days after receipt of notice, make
payment to Fund XIX sufficient to pay said net operating
losses and to provide necessary operating capital for the
premises and to pay for said capital improvements, repairs
and/or replacements, all in proportion to their undivided
interests in and to the Premises.
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 30, 2023 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 XIX:
AEI Income and Growth Fund XIX Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
If to Xxxxx:
Xxxx X. and Xxxxx X. Xxxxx
0000 Xxxxxxxx Xx
Xxxxxx Xxx, XX 00000
If to Obata:
Xxx X. Xxxxx
0000 Xxx Xxxxx
Xxxxxx, XX 00000
Co-Tenant Initial: /s/ JC /s/ KC
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
If to Xxxxxxxx:
Xxxxxx X. Xxxxxxxx, Trustee
00 Xxxx 0000 Xxxxx
Xxxxxxxxx, XX 00000
If to Xxxxxx:
Xxxxx Xxxxxx, Xx. and Xxxxx Xxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
If to Hossom:
Xxxxxxxx X. Xxxxxx, Trustee
00000 Xxxxxxxxx Xxxxx
Xxxx, XX 00000
If to Xxxxxx:
Xxxxx X. Xxxxxx, Trustee
0000 Xxxxx Xx Xxxxxx
Xxxx Xxxxx, XX 00000
If to Xxxxxxx:
Xxxxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to White:
Xxxxx X. Xxxxx and Xxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
The remainder of this page intentionally left blank
Co-Tenant Initial: /s/ JC /s/ KC
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
Each mailed notice or election shall be deemed to have been
given to, or served upon, the party to which addressed on
the date the same is deposited in the United States
certified mail, return receipt requested, postage prepaid,
or given to a nationally recognized courier service
guaranteeing overnight delivery as properly addressed in the
manner above provided. Any party hereto may change its
address for the service of notice hereunder by delivering
written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10)
days prior to the effective date of said change.
9. This Agreement shall not create any partnership or
joint venture among or between the Co-Tenants or any of
them, and the only relationship among and between the Co-
Tenants hereunder shall be that of owners of the premises as
tenants in common subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or
circumstances shall not render that provision, nor any other
provision hereof, unenforceable or invalid as to any other
person or circumstances, and all provisions hereof, in all
other respects, shall remain valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be
entitled to receive from the losing party, in addition to
all other relief, remedies and damages to which it is
otherwise entitled, all reasonable costs and expenses,
including reasonable attorneys' fees, incurred by the
prevailing party in connection with said litigation.
IN WITNESS WHEREOF, The parties hereto have caused this
Agreement to be executed and delivered, as of the day and
year first above written.
XXXXX XXXX X. XXXXX AND XXXXX X. XXXXX
By: /s/ Xxxx X Xxxxx
Xxxx X. Xxxxx
State of MARYLAND)
) ss.
County of Xxxxx)
I, a Notary Public in and for the state and county of
aforesaid, hereby certify there appeared before me this 1st
day of June, 1999, Xxxx X. Xxxxx, who executed the foregoing
instrument in said capacity.
/s/ Xxxxx X Xxxxxxxx
Notary Public
By: /s/ Xxxxx X Xxxxx
Xxxxx X. Xxxxx
State of MARYLAND)
) ss.
County of Xxxxx)
I, a Notary Public in and for the state and county of
aforesaid, hereby certify there appeared before me this 1st
day of June, 1999, Xxxx X. Xxxxx, who executed the foregoing
instrument in said capacity.
/s/ Xxxxx X Xxxxxxxx
Notary Public
Co-Tenant Initial:
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
Fund XIX AEI Net Lease Income & Growth Fund XIX Limited
Partnership
By: AEI Fund Management XIX, Inc., its corporate
general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
State of Minnesota )
) ss.
County of Xxxxxx )
I, a Notary Public in and for the state and county of
aforesaid, hereby certify there appeared before me this 1st
day of June, 1999, Xxxxxx X. Xxxxxxx, President of AEI Fund
Management XIX, Inc., corporate general partner of AEI
Income & Growth Fund XIX Limited Partnership who executed
the foregoing instrument in said capacity and on behalf of
the corporation in its capacity as corporate general
partner, on behalf of said limited partnership.
/s/ Xxxxxxx X Xxxxxxxx
Notary Public
[notary seal]
Co-Tenant Initial:
Co-Tenancy Agreement for Hometown Buffet-Tucson, AZ
EXHIBIT "A"
That portion of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 14
East, Gila and Salt River Base and Meridian, Pima County
Arizona, described as follows:
BEGINNING at the Northeast corner of XXXXXX ADDITION
SUBDIVISION, as recorded in Book 12, Page 23, of Maps and
Plats, in the office of the Pima County Recorder;
THENCE North 89 degrees 06 minutes 27 seconds East, along
the South right of way line of EAST 14TH STREET, as it now
exists, a distance of 319.42 feet to the TRUE POINT OF
BEGINNING;
THENCE CONTINUE North 89 degrees 06 minutes 27 seconds East,
along the South right of way, a distance of 263.76 feet to a
point of curvature;
THENCE Southeasterly along a circular arc whose central
angle is 90 degrees 07 minutes 31 seconds and a radius of 25
feet, a distance of 39.32 feet to a point of tangency;
THENCE South 00 degrees 46 minutes 02 seconds West, along
the Westerly right of way line of SOUTH XXXXXX ROAD, as it
now exists, a distance of 210.98 feet to a point of
curvature;
THENCE Southwesterly along a circular arc whose central
angle is 90 degrees 15 minutes 03 seconds and a radius of 25
feet, a distance of 39.38 feet to a point of tangency;
THENCE South 89 degrees, 29 minutes, 01 seconds West, along
the Northerly right of way line of EAST TIMROD STREET, as it
now exists, a distance of 158 feet to a point;
THENCE North 00 degrees 30 minutes 59 seconds West, a
distance of 65 feet to a point;
THENCE South 89 degrees 29 minutes 01 seconds West, a
distance of 55.24 feet to a point;
THENCE North 32 degrees 17 minutes 15 seconds West, a
distance of 40.77 feet to a point;
THENCE North 01 degrees 42 minutes 45 seconds East, a
distance of 103.95 feet to a point;
THENCE South 87 degrees 51 minutes 50 seconds West, a
distance of 32.60 feet to a point;
THENCE North 02 degrees 08 minutes 10 seconds West, a
distance of 56.54 feet to the TRUE POINT OF BEGINNING.
