PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Hollywood Video, Saraland, AL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21st day of April, 2000, by and
between Wuest Estate Company, A California Corporation
(hereinafter called "Wuest") and AEI Income & Growth Fund XXII
Limited Partnership (hereinafter called "Fund XXII") (Wuest, Fund
XXII (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 XXII presently owns an undivided 74.8876% interest
in and to, and Wuest presently owns an undivided 12.5832%
interest in and to, and Carl R. Whittington, Trustee of the Carl
R. Whittington Trust, dated October 16, 1996 presently owns an
undivided 12.5292% interest in and to the land, situated in the
City of Saraland, County of Mobile, 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 Wuest's interest by
Fund XXII; 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 Wuest 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 XXII, or its designated agent, successors or
assigns. Provided, however, if Fund XXII shall sell all of its
interest in the Premises, the duties and obligations of Fund XXII
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 XXII 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.
Wuest hereto hereby designates Fund XXII as its sole and
exclusive agent to deal with, and Fund XXII 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
XXII, 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
Co-Tenant Initial: /s/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
of Wuest As long as Fund XXII owns an interest in the
Premises, only Fund XXII may obligate Wuest with respect to
any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XXII agrees to
require any lessee of the Premises to name Wuest as an insured or
additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XXII 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 XXII 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 XXII may offset
against, pay to itself and deduct from any payment due to Wuest
under this Agreement, and may pay to itself the amount of Wuest
's share of any reasonable expenses of the Premises which are not
paid by Wuest to Fund XXII or its assigns, within ten (10) days
after demand by Fund XXII. In the event there is insufficient
operating income from which to deduct Wuest's unpaid share of
operating expenses, Fund XXII 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.
Wuest has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XXII in the amount
of $571 for the expenses, direct and indirect, incurred by Fund
XXII in providing Wuest with quarterly accounting and
distributions of Wuest 's share of net income and for tracking,
reporting and assessing the calculation of Wuest 's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Wuest authorizes
Fund XXII to deduct such amount from Wuest's share of revenue
from the Premises. Wuest 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 XXII pursuant to Section 1 hereof.
Fund XXII may terminate its obligation under this paragraph upon
30 days notice to Wuest 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 XXII'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 XXII shall
prepare an accurate income statement for the ownership of the
Premises for said calendar
Co-Tenant Initial: /s/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
year and shall furnish copies of the same to all Co-Tenants.
Quarterly, as its share, Wuest shall be entitled to receive
12.5832% 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 XXII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XXII 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 January
30, 2033 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;
Co-Tenant Initial: /s/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
If to Fund XXII:
AEI Income and Growth Fund XXII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Wuest:
Wuest Estate Company
1380-C Garnett Avenue
San Diego, CA 92109
If to Whittington:
Carl R. Whittington, Trustee
1440 Elm Grove Avenue
Akron, OH 44312
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/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Wuest: Wuest Estate Company, A California Corporation
By:/s/ Thomas G Morton
Thomas G. Morton, Senior Vice President
By: /s/ Steven T Morton
Steven T. Morton, Assistant Secretary
STATE OF CALIFORNIA)
) ss
COUNTY OF SAN DIEGO)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 17th day of April,
2000, Thomas G. Morton, Senior Vice President and Steven T.
Morton, Assistant Secretary, who executed the foregoing
instrument in said capacity.
/s/ Angela Ponce DeLeon
Notary Public
[notary seal]
Co-Tenant Initial: /s/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
Fund XXII: AEI Income & Growth Fund XXII 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 21st day of April,
2000, Robert P. Johnson, President of AEI Fund Management XXI,
Inc., corporate general partner of AEI Income & Growth Fund XXII
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/ TGM /s/ STM
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
EXHIBIT A
Lot 1, WAL*MART SQUARE, according to the plat thereof recorded in
Map Book 70, Page 25 of the probate Court Records of Mobile
County, Alabama.