EXHIBIT 10.5
LEASING AND COORDINATING AGREEMENT
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THIS AGREEMENT, made as of the _____ day of ___________, 1998, between
XXXXX REAL ESTATE INVESTMENT TRUST, INC., a Delaware corporation (the "Owner"),
and XXXXX MANAGEMENT COMPANY, INC., a Georgia corporation (the "Agent").
WITNESSETH:
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WHEREAS, the Owner intends to raise money from the sale of the Owner's
stock for the acquisition or construction of income-producing improvements on
several tracts as yet unspecified but to be acquired by Owner; and
WHEREAS, the Owner intends to employ the Agent to manage any leasable
improvements that may be constructed by the Owner; and
WHEREAS, the Owner and Agent are entering into this Agreement to
establish the terms and conditions for such services.
NOW THEREFORE, in consideration of the mutual premises and convenants
herein contained, the Owner and Agent agree as follows:
1. Leasing Agent. The Owner hereby engages the Agent for the term
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hereof as the exclusive leasing and tenant coordinating agent for commercial
buildings to be developed by the Owner.
2. Effective Date and Terms. This Agreement shall become effective
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upon the date hereof. The initial term of this Agreement shall be for a period
of 12 months beginning on the date the Owner notifies the Agent in writing that
one or more Owner are available for lease. The term shall be automatically
extended for an additional one year period at the end of each year unless the
Owner or Agent give sixty (60 days written notice of their intention not to
renew this Agreement. Both the Owner and the Agent may terminate this Agreement
at an earlier date upon sixty (60) days written notice to the other party. The
Agent may engage in preleasing activities as of the date hereof.
3. Leasing Functions. The Agent, by the execution hereof, accepts
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the Owner's engagement of the Agent as the exclusive leasing and tenant
coordination agent of the Owner for the term hereof, and agrees to use its best
efforts to perform the following specific functions:
(a) to seek diligently tenants and obtain signed leases for the Owner
under the terms prescribed by the Owner;
(b) to coordinate the planning of each tenant's space with the
architect and obtain such tenant's approval of the plan;
(c) to coordinate the construction of each tenant's space with the
contractor or the Owner and prepare an accounting of tenant coverage costs (if
any) for such tenant;
(d) to coordinate each tenant's moving into its completed offices; and
(e) not later than 30 days before the anniversary of this Agreement
and extensions thereof, the Agent shall prepare and submit to the Owner for its
approval a marketing and leasing plan for the Owner for the calendar year
immediately following such submission. The leasing plan shall be in the form
approved by the Owner prior to the date thereof. As often as reasonably
necessary during the period covered by any such plan, the Agent may submit to
the Owner for its approval an updated plan incorporating such changes as shall
be necessary to reflect leasing experience during such period. If the Owner
does not disapprove any such plan within 30 days after receipt thereof by the
Owner, such plan shall be deemed approved. If the Owner shall disapprove any
such plan, it shall so notify the Agent within said 30 day period and explain
the reasons therefor.
4. Reimbursement. The Agent shall be reimbursed by the Owner for all
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expenses of the Owner that the Agent incurs in connection with the performance
of its duties and obligations pursuant to this Agreement, provided that such
expenses are expressly authorized by the Owner. Such reimbursements may include
salaries and other employee-related expenses, travel and other out-of-pocket
expenses directly related to a specific Owner to the extent permitted by the
Statement of Policy Regarding Real Estate Investment Trusts by the North
American Securities Administrators Association, Inc., as amended (the "NASAA
Guidelines").
5. Compensation of the Agent.
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5.1. Agent. For performing the functions outlined in Section 3 the
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Agent shall be compensated as follows:
(a) The Agent shall be paid two percent (2%) of the Gross Revenues
paid monthly from rents collected;
(b) In addition to the compensation paid to the Agent under Section
5.1(a) above, the Agent shall be entitled to receive a separate competitive fee
for the one-time initial rent-up or lease-up of a newly constructed property,
provided said fee is not included in the purchase price of the property paid by
the Owner. For this purpose, a total rehabilitation shall be included in the
phrase "newly constructed". The fee paid the Agent under this section is
intended to comply with the applicable provision of the NASAA Guidelines, and in
all instances shall be interpreted in a manner which will comply with said
provision;
(c) The Agent's compensation under Section 5.1(a), but not Section
5.1(b) hereof, shall apply to all renewals, extensions or expansions of leases
which the Agent has originally negotiated; and
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(d) For planning and coordinating the construction of any tenant
finish along with the Owner or any architect, contractor or other authorized
person, the payment for which shall be the responsibility of the tenant, the
Agent shall be entitled to receive from any such tenant an amount equal to 5% of
the amount as remitted by the tenant to the Owner or to a representative of the
Owner in payment for such construction.
As used herein, the term "Gross Revenues" shall mean all amounts
actually collected as rents or other charges for the use and occupancy of Owner,
but shall exclude interests and other investments income of the Owner and
proceeds received by the Owner from a sale, exchange, condemnation, eminent
domain taking, casualty or other disposition of assets of the Owner.
5.2 Co-Brokerage. The Owner agrees that the Agent shall not be
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required to share or co-broker the compensation outlined in Section 5.1(a) and
(b) with another agent. The parties further agree that the amount paid to other
real estate agents for their brokerage services shall reduce, on a dollar by
dollar basis, the amount paid to the Agent under Section 5.1(b) hereof. Any
commissions due other real estate agents for procuring a tenant shall be paid by
the Owner.
5.3 Sale of Owner. If the Owner are sold, the Owner agrees to
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furnish the Agent with an agreement signed by the purchaser assuming the Owner's
obligations to pay compensation earned under Section 5.1 of this Agreement.
6. Agent's Limited Liability.
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6.1 Agent's Liability. The Agent's liability is limited in the
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following ways:
(a) The Agent shall not be responsible for acts or omissions of any
contractor, any subcontractor or any of their agents or employees or any other
persons performing any of the work on the Owner which did not result from the
negligence or misconduct of Agent.
(b) The Agent shall not be responsible for errors or omissions of the
architect, his or its engineers, employees or agents or any other independent
engineer, surveyor or other professionals providing services in connection with
the construction of the Owner which did not result from the negligence or
misconduct of Agent.
6.2 Indemnification of Owner. In the performance of its duties
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hereunder, the Agent shall diligently endeavor to protect the property rights
and interests of the Owner as vested in the Owner. The Agent hereby agrees to
indemnify the Owner and hold the Owner harmless from and against any claims,
actions, damages expenses (including, without limitation, attorneys' and
accountants' fees and court costs) and liabilities relating to the negligence or
misconduct of the Agent.
7. Notices. Any notice which may be or is required to be given
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hereunder shall be deemed given when received by personal delivery or by
registered or certified United States mail, postage prepaid, return receipt
requested, addressed to the Owner and/or the Agent at the address
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set forth after their respective name below, or at such different addresses as
either party shall have theretofore advised the other party in writing in
accordance with this Section 7.
Owner: Xxxxx Real Estate Investment Trust, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Agent: Xxxxx Management Company, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
8. Limitation. Except as otherwise specifically provided in this
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Agreement, the Agent shall have not right to incur any liability on behalf of
the Owner or to bind the Owner by an contract or obligation.
9. Activities of Agent. The obligations of the Agent pursuant to the
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terms and provisions of this Agreement shall not be construed to preclude the
Agent from engaging in other activities or business ventures, whether or not
such other activities or ventures are in competition with the Owner or the
business of the Owner.
10. Independent Contractor. The Agent and the Owner shall not be
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construed as joint venturers or Owners of each other pursuant to this Agreement,
and neither shall have the power to bind or obligate the other except as set
forth herein. In all respects the status of the Agent to the Owner under this
Agreement is that of an independent contractor.
11. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Georgia.
12. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
13. Entire Agreement. This Agreement contains the entire
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understanding and all agreements between the parties hereto respecting the
leasing and coordinating of tenant improvements on the Owner. There are no
representations, agreements, arrangements or understandings, oral or written,
among the parties hereto relating to the leasing and tenant coordinating of the
improvements on the Owner which are not fully expressed herein.
14. Section Headings. The section headings in this Agreement are
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inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope or intent of this Agreement or in any way affect
this Agreement.
15. Disputes. If there shall be a dispute among the Agent and the
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Owner relating to this Agreement resulting in litigation, the prevailing party
in such litigation shall be entitled to recover from the other party to such
litigation such amount as the court shall fix as reasonably attorney's fees.
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16. Binding Agreement. This Agreement shall be binding upon the
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parties hereto and their successors and assigns. This Agreement shall not be
changed orally, but may be changed only by a written agreement signed by the
Owner and the Agent. No waiver or any breach of any covenant, condition or
agreement contained herein shall be construed to be a subsequent waiver of that
covenant, condition or agreement or of any subsequent breach thereof or of this
Agreement.
17. Assignment. Agent may delegate partially or in full its duties
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and rights under this Agreement but only with the vote of a majority in interest
of the Limited Owners of the Owner. Except as provided in the immediately
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed as of the day and year first above written.
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
XXXXX MANAGEMENT COMPANY, INC.
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
