PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Marie Callender's - Henderson, NV)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21st day of August, 2000, by and
between Shigemi Miya and Yukio Miya, Trustees of the Shigemi Miya
Family Protection Trust dated February 23, 1996 (hereinafter
called "Miya"), and AEI Net Lease Income & Growth Fund XIX
Limited Partnership (hereinafter called "Fund XIX") (Miya, 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 11.8654% interest
in and to, and Miya presently owns an undivided 11.6099% interest
in and to, and the Charles M. and Judith K. Westfahl Community
Trust, dated June 2, 1994 presently owns an undivided 6.9659%
interest in and to, and Judith K. Westfahl, Trustee of the Judith
K. Westfahl Personal Living Trust dated September 15, 1994
presently owns an undivided 9.2879% interest in and to, and Grace
Noltensmeier presently owns an undivided 13.5604% interest in and
to, and Francis E. Quinn and Cecile Ann Quinn, husband and wife
as survivorship marital property presently own an undivided
10.1238% interest in and to, and Carl R. Whittington, Trustee of
the Carl R. Whittington Trust dated October 16, 1996 presently
owns an undivided 10.4257% interest in and to, and George Richard
Swanson and Christine Marie Orth, married with rights of
survivorship, presently own an undivided 14.1641% interest in and
to, and George M. Kunitake and Kay H. Kunitake, husband and wife,
and Steven T. Kunitake, as joint tenants, presently own an
undivided 11.9969% interest in and to the land situated in the
City of Henderson, County of Clark, and State of NV, (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 Miya's 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 Miya 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
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
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. Miya
hereto hereby designates Fund XIX as its 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 Miya. As long as Fund XIX owns an interest in the
Premises, only Fund XIX may obligate Miya with respect to any
expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XIX agrees to
require any lessee of the Premises to name Miya 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 under
this Agreement, and may pay to itself the amount of Miya's share
of any reasonable expenses of the Premises which are not paid by
Miya 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 Miya's 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.
Miya has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XIX in the amount
of $656 for the expenses, direct and indirect, incurred by Fund
XIX in providing Miya with quarterly accounting and distributions
of Miya's share of net income and for tracking, reporting and
assessing the calculation of Miya's share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and Miya authorizes Fund XIX to deduct
such amount from Miya's share of revenue from the Premises. Miya
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;
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
however, enforcement of all other provisions of the lease remains
the sole right of Fund XIX pursuant to Section 1 hereof. Fund
XIX agrees to perform its obligation under this paragraph
throughout the term of this agreement.
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, Miya shall be entitled
to receive 11.6099% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the
payments received by each Co-Tenant pursuant to this Paragraph 3
do not equal, in the aggregate, the amounts which each are
entitled to receive proportional to its share of ownership with
respect to said calendar year pursuant to Paragraph 2 hereof, an
appropriate adjustment shall be made so that each Co-Tenant
receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XIX, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XIX sufficient to pay said net operating losses
and to provide necessary operating capital for the premises and
to pay for said capital improvements, repairs and/or
replacements, all in proportion to their undivided interests in
and to the Premises.
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 September
1, 2029 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 Property and
with the title thereto. Once any person, party or entity has
ceased to have an interest in fee in any portion of the Entire
Property, 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.
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
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 Real Estate Fund XIX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Miya:
Yukio and Shigemi Miya, Trustees
107 South 1000 West
Clearfield, UT 84015
If to Westfahl:
Judith K. Westfahl, Trustee
3356 E. Tall Pine Lane
Salt Lake City, UT 84124
If to Noltensmeier:
Grace Noltensmeier
c/o Ken Noltensmeier
1415 Rim View
Caldwell, ID 83605
If to Quinn:
Francis E. and Cecile Ann Quinn
510 West 4th Street
Shawano, WI 54166
If to Whittington:
Carl R. Whittington, Trustee
1440 Elm Grove Avenue
Akron, OH 44312
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
If to Swanson:
George Richard Swanson and Christine Marie Orth
160 Kipling Drive
Mill Valley, CA 94941
If to Kunitake:
George M. and Kay H. Kunitake
Steven T. Kunitake
153 Exeter
San Carlos, CA 94070
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 INTENTIONLLY LEFT BLANK
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Miya: Shigemi Miya, Trustee of the Shigemi Miya
Family Protection Trust
dated February 23, 1996
By: /s/ Shigemi Miya
Shigemi Miya, Trustee
Yukio Miya, Trustee of the Shigemi
Miya Family Protection Trust
dated February 23, 1996
By: /s/ Yukio Miya
Yukio Miya, Trustee
WITNESS:
/s/ Alan R Johnson
Alan R Johnson
(Print Name)
STATE OF UTAH)
) ss
COUNTY OF WEBER)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 25, day of July,
2000, Shigemi Miya, who executed the foregoing instrument in said
capacity.
/s/ Kay V Hornbuckle
Notary Public
[notary seal]
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
STATE OF UTAH)
) ss
COUNTY OF WEBER)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 25, day of July,
2000, Yukio Miya, who executed the foregoing instrument in said
capacity.
/s/ Kay V Hornbuckle
Notary Public
[notary seal]
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
Fund XIX: AEI Net Lease Income & Growth Fund XIX Limited Partnership
By: AEI Fund Management XIX, Inc., its corporate general
partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Jill Rayburn
Jill Rayburn
(Print Name)
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 21st day of August,
2000, Robert P. Johnson, President of AEI Fund Management XIX
Inc., corporate general partner of AEI Net Lease Income & Growth
Fund XIX Limited Partnership, who executed the foregoing
instrument in said capacity and on behalf of the corporation in
its capacity as corporate general partner, on behalf of said
limited partnership.
/s/ Linda A Bisdorf
Notary Public
[notary seal]
Co-Tenant Initial: /s/ SM /s/ YM
Co-Tenancy Agreement for Marie Callender's, Henderson, NV
EXHIBIT "A"
LEGAL DESCRIPTION
(Henderson, Nevada)
Being a division of Lot One (1) as shown upon the FINAL MAP
OF GALLERIA COMMONS ( a commercial subdivision) as depicted
in Book 79, Page 48 of Plats, Official Records, Clark
County, Nevada, also being a portion of the West Half (W
1/2) of the Southwest Quarter (SW 1/4) of Section 3,
Township 22 South, Range 62 East, M.D.M., City of Henderson,
Clark County, Nevada, more particularly described as
follows:
Commencing at the West Quarter Corner (w 1/4 Cor.) of said
Section 3, said corner being common to Sections 3 and 4;
Thence South 00 14' 06" West along the West line of said
Section 3, a distance of 808.13 feet;
Thence North 88 55' 32" East, a distance of 50.01 fee to a
point on the Easterly right of way line of Stephanie Street'
Thence south 00 14' 06" West along said Easterly right of
way line, a distance of 585.62 feet;
Thence South 89 45' 54" East, a distance of 20.00 feet to
the Point of Beginning;
Thence North 88 51' 28" East, a distance of 147.22 feet;
Thence South 01 05' 43" East, a distance of 108.33 feet;
Thence South 88 51' 28" West, a distance of 2.92 feet;
Thence South 89 56' 32" West, a distance of 149.41 feet;
Thence North 00 14' 06" East, a distance of 284.89 feet to
the POINT OF BEGINNING
