PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Hometown Buffet Restaurant - Tucson, AZ)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 29 day of March, 1999, by and
between Xxxxxx X. Xxxxxxxx and Xxxxx Xxx Xxxxxxxx, Trustees of
the Xxxxxx X. Xxxxxxxx Family Revocable Trust, dated 10/29/81
(hereinafter called "Xxxxxxxx"), and AEI Net Lease Income &
Growth Fund XIX Limited Partnership (hereinafter called "Fund
XIX") Xxxxxxxx, 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 34.7325% interest
in and to, and Xxxxxxxx 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 Xxxxxxxx'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 Xxxxxxxx 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 good faith 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 Xxxxxxxx. As long as Fund XIX owns an
interest in the Premises, only Fund XIX may obligate Xxxxxxxx
with respect to any expense for the Premises.
Co-Tenant Initial: /s/ EMH /s/ CRH
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 Xxxxxxxx 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
Xxxxxxxx under this Agreement, and may pay to itself the amount
of Xxxxxxxx'x share of any reasonable expenses of the Premises
which are not paid by Xxxxxxxx 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 Xxxxxxxx'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.
Xxxxxxxx has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XIX in the amount
of $705 for the expenses, direct and indirect, incurred by Fund
XIX in providing Xxxxxxxx with quarterly accounting and
distributions of Xxxxxxxx'x share of net income and for tracking,
reporting and assessing the calculation of Xxxxxxxx'x share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Xxxxxxxx
authorizes Fund XIX to deduct such amount from Xxxxxxxx'x share
of revenue from the Premises. Xxxxxxxx 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 Xxxxxxxx
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, Xxxxxxxx shall be
entitled to receive 11.8047% 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-Tenant Initial: /s/ EMH /s/ CRH
Co-Tenancy Agreement for Hometown Buffet - Tucson, AZ
Co-Tenants, upon receipt of a written request therefor from Fund
XIX, shall, within fifteen (15) business days after receipt of
notice, make payment to Fund XIX sufficient to pay said net
operating losses and to provide necessary operating capital for
the premises and to pay for said capital improvements, repairs
and/or replacements, all in proportion to their undivided
interests in and to the Premises.
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. Xxxxxxxx agrees to notify Fund XIX upon the
appointment of any successor trustee, or any amendment of the
Xxxxxx X. Xxxxxxxx Family Revocable Trust affecting the powers of
the Trustees to manage or dispose of the Xxxxxx X. Xxxxxxxx
Family Revocable 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 XIX:
AEI Income and Growth Fund XIX Limited Partnership
1300 Minnesota World Trade Center
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
If to Xxxxxxxx:
Xxxxxx X. Xxxxxxxx, Trustee
Xxxxx Xxx Xxxxxxxx, Trustee
00 Xxxx 0000 Xxxxx
Xxxxxxxxx, XX 00000
Co-Tenant Initial: /s/ EMH /s/ CRH
Co-Tenancy Agreement for Hometown Buffet - Tucson, AZ
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
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.
Co-Tenant Initial: /s/ EMH /s/ CRH
Co-Tenancy Agreement for Hometown Buffet - Tucson, AZ
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Xxxxxxxx XXXXXX X. XXXXXXXX AND XXXXX XXX XXXXXXXX, TRUSTEES OF
THE XXXXXX X. XXXXXXXX FAMILY REVOCABLE TRUST, DATED
10/29/81.
By:/s/ Xxxxxx X Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Trustee
State of Jamaica)
City of Kingston ) ss.
County of Embassy of the United States )
Of America
I hereby certify there appeared before me this 25th day of March,
1999, Xxxxxx X. Xxxxxxxx, Trustee, who executed the foregoing
instrument in said capacity.
/s/ Xxxxx X Xxxxx
Consul of the United States
of America
By: /s/ Xxxxx Xxx Xxxxxxxx
Xxxxx Xxx Xxxxxxxx, Trustee
State of Jamaica)
City of Kingston ) ss.
County of Embassy of the United States )
Of America
I hereby certify there appeared before me this 25th day of March,
1999, Xxxxx Xxx Xxxxxxxx, Trustee, who executed the foregoing
instrument in said capacity.
/s/ Xxxxx X Xxxxx
Co-Tenant Initial: /s/ EMH /s/ CRH
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 29 day of March,
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/ Xxxxx X Xxxxxx
Notary Public
[notary seal]
Co-Tenant Initial:
Co-Tenancy Agreement for Hometown Buffet - Tucson, AZ
EXHIBIT "A"
That portion of Section 13, Township 14 South; Range 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 210.86 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.
