PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Taco Cabana - San Antonio, TX)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 24th day of October, 1997, by and
between ▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee, U/A DTD 8/19/80, FBO ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust (hereinafter called "Drago"), and AEI
Real Estate Fund XVIII Limited Partnership (hereinafter called
"Fund XVIII") (Drago, Fund XVIII (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 XVIII presently owns an undivided 9.3699% interest
in and to, and Drago presently owns an undivided 12.8462%
interest in and to, and The ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust and ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ Trust presently owns an undivided 12.8462% interest in and
to, and ▇▇▇▇ ▇▇▇▇▇▇, Inc. presently owns an undivided 15.6724%
interest in and to, and ▇▇▇▇▇ ▇▇▇▇▇▇ presently owns an undivided
11.5896% interest in and to, and The ▇▇▇▇▇▇ Family Trust
presently owns an undivided 13.2895% interest in and to, and ▇▇▇▇
▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ presently owns and undivided 10.6316%
interest (also referred to herein as Co-Tenant) in and to, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ presently owns an undivided 13.7546% interest
(also referred to herein as Co-Tenant) in and to the land,
situated in the City of San Antonio, County of Bexar, and State
of Texas, (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 Drago's interest by
Fund XVIII; 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 Drago 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with any property agent and to execute
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 all present or future Co-
Tenants. Only Fund XVIII may obligate Drago with respect to any
expense for the Premises.
Co-Tenant Initial: /s/ AD
Co-Tenancy Agreement for Taco Cabana - San Antonio, TX
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any lessee of the Premises to name Drago as an insured or
additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII 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 XVIII 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, expenses and any net proceeds from a sale of the
Premises 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 XVIII may offset against, pay to
itself and deduct from any payment due to Drago under this
Agreement, and may pay to itself the amount of Drago's share of
any legitimate expenses of the Premises which are not paid by
Drago to Fund XVIII or its assigns, within ten (10) days after
demand by Fund XVIII. In the event there is insufficient
operating income from which to deduct Drago's unpaid share of
operating expenses, Fund XVIII 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.
Drago has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $740 for the expenses, direct and indirect, incurred by
Fund XVIII in providing quarterly accounting and distributions of
Drago's share of net income and for tracking, reporting and
assessing the calculation of Drago's share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and Drago authorizes Fund XVIII to deduct
such amount from Drago's share of revenue from the Premises.
Drago 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 XVIII pursuant to Section 1 hereof. Fund XVIII may
terminate its obligation under this paragraph upon 30 days notice
to Drago 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 XVIII'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 XVIII
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, Drago shall
be entitled to receive 12.8462% 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.
Co-Tenant Initial: /s/ AD
Co-Tenancy Agreement for Taco Cabana - San Antonio, TX
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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XVIII 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. Subject to the rights of any Tenant under a lease of the
Premises, 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 property management 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
July 19, 2016 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. Drago agrees to
notify Fund XVIII upon the appointment of any successor trustee,
or any amendment of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust or the ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ Trust affecting the powers of the Trustees to manage or
dispose of the Drago 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 deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Davidson:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Middleton:
Co-Tenant Initial: /s/ AD
Co-Tenancy Agreement for Taco Cabana - San Antonio, TX
▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇ Francesco, Secretary/Treasurer
▇.▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Hill:
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Drago:
▇▇▇▇▇▇▇ ▇▇▇▇▇, TTEE
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
10. 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.
11. 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.
Co-Tenant Initial: /s/ AD
Co-Tenancy Agreement for Taco Cabana - San Antonio, TX
12. 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.
▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee
WITNESS:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
(Print Name)
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this day of ,1997, by , Notary Public.
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
WITNESS:
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
(Print Name)
State of Minnesota )
) ss.
County of ▇▇▇▇▇▇ )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 24th day of October,
1997, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIII
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/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Notary Public
[notary seal]
Co-Tenant Initial: /s/ AD
Co-Tenancy Agreement for Taco Cabana - San Antonio, TX
Exhibit A
Legal Description
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ Subdivision, Unit 3,
an addition to the City of San Antonio, Bexar County, Texas,
according to the map or plat thereof, recorded in Volume 9504,
Page 182, Deed and Plat Records or Bexar County, Texas.