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EXHIBIT NO. 10.10
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XXXXXX, INC.
STANDARD MANAGEMENT AGREEMENT
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THIS STANDARD MANAGEMENT AGREEMENT made and entered into this 1ST Day
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of NOVEMBER , 1997 , by and between XXXXXX REALTY TRUST, INC.
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, (hereinafter referred to as "Owner") and Xxxxxx, Inc. (hereinafter
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referred to as "Agent").
WITNESSETH: In consideration of the mutual promises and covenants
herein contained, Owner and Agent agree as follows:
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ARTICLE I
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EXCLUSIVE AGENCY: Owner hereby appoints Agent as the sole and exclusive
leasing and management agent of certain real properties now owned or to be
acquired by Owner as listed in Exhibit "A" attached hereto which will be
revised from time-to-time to reflect all properties owned at any given time.
Agent may in Agent's sole discretion employ other management firms as
sub-agents to operate any specific property; however, the fee for such
sub-agent shall be at the expense of Agent.
If Exhibit "A" lists more than one property, the Owner may at any time
withdraw any Property listed on Exhibit "A" by giving to Agent at least
thirty (30) days' notice in writing. Such withdrawal shall not affect or
impair any right which has accrued to either party prior to the date such
withdrawal becomes effective. However, termination of this entire Agreement,
as provided in Article V, shall be distinguished from the withdrawal of
individual properties.
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ARTICLE II
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LEASING: Agent shall use its best efforts in supervising the leasing of
vacant space within the Property and in keeping the Property rented to
desirable tenants; and to this end, Agent is hereby authorized by Owner to
enlist the services of other such real estate brokers as Agent shall deem
necessary. Payment of any commissions due such brokers shall be paid in
accordance to Exhibit "B" attached to this Agreement. All requests and
inquiries received by Owner for any leases, renewals or agreements for the
rental or operation of the property, or portions thereof, shall be referred
by Owner to Agent; and all negotiations connected therewith shall be
conducted solely by or under the supervision of Agent. In addition thereto,
Agent is authorized in the name of Owner to set rental rates and negotiate
(including without limitation, setting rental abatements, construction
allowances, parking, and other amenities), execute, renew and/or cancel
leases for the Property or portions thereof, as well as hold security
deposits, serve notices, and distribute funds on Owner's behalf, as Agent
deems advisable for the benefit of Owner and/or the Property.
Notwithstanding the foregoing, Agent shall not enter into any of the
aforesaid without the prior consent of Owner.
ADVERTISING: Agent is authorized, in the name of and at the expense of
Owner, to advertise the Property or portions thereof; and, with respect
thereto, Agent may prepare and secure renting signs, renting plans, circular
matter, display the Property, and perform or secure any other advertising as
Agent deems advisable for the expedient leasing of the Property.
COLLECTION OF RENT: Agent shall use its best efforts in the management
of the Property; and Agent shall use due diligence in collecting and
enforcing the collection of all rents and other charges due Owner from any
tenant(s), pursuant to the terms and conditions of said tenant(s)' respective
lease(s).
LEGAL PROCEEDINGS: Agent may, in the name of and at the expense of
Owner, engage legal counsel to institute any and all legal actions or
proceedings for the collection or enforcement of rents or other charges due
Owner from the Property; institute and prosecute actions to evict tenants
and/or dispossess tenants and recover possession of the premises; and, when
expedient, settle, compromise and release such actions or proceedings.
However, Agent shall in no event institute, dismiss or settle any suit or
proceeding without the prior consent of Owner. Further, Agent may also
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employ legal counsel for advice with respect to existing tenancies and for
preparation of leases, lease amendments, and other necessary instruments to
carry out the intent of this Agreement. Owner shall reimburse Agent, in the
manner herein provided, for all expenses incurred by Agent hereunder for the
reasonable fees and expenses of such counsel.
REPAIRS: Agent is authorized, in the name of and at the expense of
Owner, to make or cause to be made such ordinary repairs, alterations and/or
decorations to the Property as may be advisable or necessary in the opinion
of Agent. The expense to be incurred for any one item of repair, alteration
or decoration shall not exceed the sum of TEN THOUSAND AND 00/100---------
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($10,000.00 ) Dollars, unless first authorized by Owner. Notwithstanding
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the aforesaid, Agent shall be authorized to make all necessary repairs and/or
alterations to the Property in the event Agent deems such repairs and/or
alterations to be an emergency; however in such event, Agent shall thereafter
notify Owner immediately as to the nature and extent of said emergency and the
monies expended to remedy same. Agent shall allow to Owner any rebate or
discount which Agent shall obtain in connection with any repairs, alterations,
or decorations to the Property.
SERVICE CONTRACTS: Agent is authorized, in the name of and at the
expense of Owner, to make contracts for electricity, gas, water, telephone,
elevator, maintenance, janitorial services, window cleaning, vermin
extermination, and other services or such of them as Agent shall deem
advisable. In the event any such contracts extend beyond the termination of
this Agreement, Owner shall assume and honor all obligations of said
contracts, and shall defend and hold Agent harmless against any liability
therefor.
EMPLOYEES: Agent is an independent contractor and is not an employee
of Owner. All persons engaged in the servicing, operation, or maintenance of
the Property shall be the employees of Agent or its sub-contractor, and not
of Owner. Agent agrees on behalf of Owner to supervise the work of all
employees, and to hire and discharge such employees, from time to time, who
are performing work or services for and on behalf of Owner and/or the
Property. Agent agrees to use reasonable care in the hiring of such
employees; and Agent shall not be liable for the negligent or intentional
acts of any such employee unless Agent was negligent in such hiring. Agent
shall cover, or cause to be covered, all employees by Worker's Compensation
policies and any other policies which now or hereafter may be required by any
governmental agency. Agent shall cover, or cause to be covered, all
employees by Federal and State Unemployment Insurance, and shall make all
wage
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and salary deductions properly applicable thereto. Agent shall pay all
applicable taxes incurred in connection with the wages, salaries, or
employment of all employees; and Agent shall, by withholding a portion of
such wages and salaries, make all necessary deductions or payments as
required or may hereafter be required by any governmental law or regulation
applicable to the same. Agent shall reimburse itself out of the rentals from
the Property for: (a) salaries and/or wages and other charges paid to, or
for the benefit of, such employees, including but not limited to any amount
which may be paid for hospitalization or group life insurance on account of
such employees; (b) the cost of such Workers' Compensation and Unemployment
Insurance; (c) Social Security or old age Benefits; (d) all aforesaid taxes
paid by Agent; and (e) all other charges incurred by Agent in connection with
any of the foregoing matters.
Agent is also authorized, in the name of and at the expense of Owner, to
directly hire, contract for, and engage independent contractors for the
performance of any work or service on or about the Property; and Owner shall
assume and honor all such hiring, contracts and engagements through their
respective terms notwithstanding the termination of this Agreement.
EXPENSES: Agent is authorized, in the name of and at the expense of
Owner, to make payments of all expenses for and on behalf of the Property,
including but not limited to: taxes and other assessments, salaries,
insurance, mortgage payments, attorney and other professional fees, and
any and all other expenses which are necessary or advisable, in Agent's
discretion, for and on behalf of Owner and the Property. All such expenses
incurred by Agent in connection with the operation and management of the
Property and the performance of this Agreement shall be paid out of the sums
collected by Agent from the Property. In the event the sums collected are
insufficient to reimburse Agent for said expenses, Agent shall submit an
invoice to Owner for same, either before or after Agent expends such sums,
and Owner shall thereafter make payment to Agent within thirty (30) days of
receipt of such invoice.
All expenses shall be paid by Agent from a bank account established and
maintained at NATIONSBANK . Owner shall initially fund
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said account with ONE HUNDRED AND 00/100 ($ 100.00 ) Dollars, and shall
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periodically replenish said account to adequately meet the costs and expenses
of Agent, as set forth in this Agreement.
AGENT REIMBURSEMENT: Owner shall promptly reimburse Agent for any
monies that Agent shall elect to advance for and on account of Owner and/or
the Property. Said reimbursement
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shall survive the termination of this Agreement. Notwithstanding such right
of reimbursement, nothing herein shall be construed to obligate Agent to make
any such advances.
MAINTENANCE OF RECORDS: Agent shall maintain accurate records of all
monies received and disbursed in connection with the operation and management
of the Property, and such records shall be available for inspection by Owner
at Agent's office during normal business hours. Agent shall render to Owner
a monthly statement of receipts and disbursements, remitting any balance due
Owner. The disbursements shall include the compensation of Agent on the
basis set forth herein. All employees of Agent who handle or who are
responsible for Owner's monies shall be bonded by a fidelity bond.
SPECIAL SERVICES: In the event Agent is called upon by Owner to make
extraordinary repairs, or engage in extensive reconstruction or
rehabilitation of the Property of any portion thereof; or in the event Agent
is called upon by Owner to perform any other extraordinary services not
customarily a part of the usual services performed by a managing agent, it is
agreed by the parties that Agent shall receive an additional fee in an amount
to be agreed upon between the parties, but in each instance where Agent is to
receive such additional fee, the amount of such fee shall be agreed upon
prior to the commencement of such extraordinary work or service.
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ARTICLE III
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INSURANCE: Owner agrees to carry commercial general liability
insurance (including contractual liability and personal injury), all-risk
property and casualty insurance (including theft), loss of rents insurance,
and all other insurance that may be necessary for the protection of the
Property and both Owner and Agent, as their interests may appear. In each
such policy or policies of insurance, Owner agrees that Agent shall be
designated as a party insured with Owner. All such policies shall be
endorsed to be primary and non-contributory with or in excess of any
insurance carried by Agent. Owner's policies shall be with companies
licensed to do business in the State of Missouri, and Owner shall provide
Agent with certificates thereof. Such certificates shall specifically
provide that not less than thirty (30) days written notice be given to Agent
before any such policies are cancelled or not renewed.
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Owner and Agent hereby mutually waive any and all right of recovery
against one another, directly, by way of subrogation, or otherwise, for real
or personal property damage occurring to the Property, or resulting in any
loss of income, or to any personal property of either party, arising from any
occurrence, including negligence, whether or not such party is required to
carry, or actually carries, insurance for such damage. Each party shall have
the affirmative duty to inform its respective insurance carrier of this
provision and the mutual waiver of subrogation herein contained.
Notwithstanding anything to the contrary in this Agreement, Owner shall
hold Agent harmless, and indemnify and defend Agent, from claims for damages
or injuries to persons or property when Agent is carrying out the provisions
of this Agreement or acting under the express or implied directions of Owner.
The provisions and protections provided in this Article shall survive the
termination of this Agreement.
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ARTICLE IV
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AGENT'S COMPENSATION: The management fee and leasing commission rates
for Agent shall be based on the schedule attached hereto, marked Exhibit "B".
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ARTICLE V
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TERM: The term of this Agreement shall be for ten (10) months,
commencing on NOVEMBER 7 , 19 97 , and expiring on AUGUST 31,
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19 98 , unless cancelled as hereinafter provided.
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Notwithstanding the aforesaid, this Agreement is subject to cancellation
without penalty, by either party, upon sixty (60) days prior written notice.
In the event a petition in bankruptcy is filed by or against either
Owner or Agent, or in the event either party shall make an assignment for the
benefit of creditors or take advantage of any insolvency act, the other party
may terminate this Agreement without notice at any time thereafter, but shall
give notice to the other party no later than ten (10) days after such
termination.
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ARTICLE VI
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NOTICES: All notices required by this Agreement shall be in writing,
and shall be deemed served, if delivered in person or mailed by United States
Registered or Certified Mail, return receipt requested, postage prepaid to:
OWNER: XXXXXX REALTY TRUST, INC.
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0000 XXXXXXX XXXXXXXXX
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XX. XXXXX, XX 00000
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ATTENTION: XXXXXXXX X. XXXXXX, PRESIDENT
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AGENT: Xxxxxx, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Executive Vice President
Either party may designate a different address by giving notice to the
other party of same at the address set forth above.
SALE OF PREMISES: In the event Owner desires to sell the Property,
Agent shall have the exclusive right to act as Broker for and on behalf of
Owner. Brokerage commissions for such sale shall be agreed upon between the
parties prior to the property being offered for sale.
CODE COMPLIANCE: Agent does not assume any responsibility for the
compliance of any building on the Property, or any equipment thereon, as same
relates to the requirements of any statute, ordinance, law or regulation of
any government body or of any public authority or official thereon. However,
Agent shall promptly notify Owner of any complaints, warnings, notices or
summonses received by Agent relating to such matters.
ASSIGNMENT: This Agreement shall be binding upon the parties their
heirs, executors, administrators, successors, and assigns, and may not be
changed verbally, but only in writing, signed
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by both of the parties hereto. This Agreement shall not be assigned by any
party without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
OWNER: Xxxxxx Realty Trust, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
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Title: President
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AGENT: Xxxxxx, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Executive Vice President
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EXHIBIT "A" TO AGREEMENT
DATED NOVEMBER 1, 1997 BETWEEN
XXXXXX REALTY TRUST, INC.
AND XXXXXX, INC.
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LIST OF PROPERTIES MANAGEMENT FEE
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The Atrium at Alpha Business Center Four percent (4%) of gross revenues
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Franklin Park Distribution Center Three percent (3%) of gross revenues
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx
Applied Communications Building Four percent (4%) of gross revenues
000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx
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EXHIBIT "B" TO AGREEMENT
DATED NOVEMBER 1, 1997 BETWEEN
XXXXXX REALTY TRUST, INC.
AND XXXXXX, INC.
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MANAGEMENT AND LEASING FEE STRUCTURE
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1. MANAGEMENT AGREEMENT Xxxxxx, Inc.'s Standard Agreement
will serve as the document for
management of the property.
2. TERM OF AGREEMENT The Management Agreement shall be
for ten (10) months, effective upon
execution of the Agreement and may
be terminated by either party upon
sixty (60) days prior written
notice. Notwithstanding the
aforesaid, this Agreement shall
automatically terminate in the event
of a sale of the property.
3. MANAGEMENT FEE Owner agrees to pay as compensation
for management services, a
management fee equal to the lessor
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of 5% of the gross revenues of the
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properties or the compensation
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customarily charged in arm's length
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transactions by others rendering
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similar services as an ongoing
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public activity in the same
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geographical location. Gross
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revenues shall include all rents
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collected, utility charges,
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escalation charges, tax
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reimbursements and common area
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charges collected and all items of
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miscellaneous income such as sale of
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waste paper, vending machine
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receipts, etc.
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4. LEASING COMMISSIONS
a. New leases and lease renewals
negotiated directly by Agent Commissions charged by Agent shall
not exceed the compensation
customarily charged in arm's length
transactions by others rendering
similar services as an ongoing
public activity in the same
geographical location. Such leasing
fees shall be payable upon execution
of a lease agreement by both
parties.
b. New Properties When each new Property is added to
Exhibit A, an exhibit will be
attached to this Agreement
describing the specific compensation
to be paid to the Agent for
management and leasing services
provided under this Agreement. Said
fees shall be reviewed once each
year for their applicability to the
city in which the Property is
located, and said fees shall be
increased or decreased based on this
review for the next one (1) year
period.
c. Outside Brokers When lease is negotiated in
conjunction with an outside broker
(the Cooperating Broker), Owner will
pay a commission equivalent to one
and one half (1-1/2) times the rate
schedule above to Xxxxxx, Inc.
directly. Xxxxxx, Inc. shall then
pay the Cooperating Broker its share
of said commission.
5. SPECIAL SERVICES If Xxxxxx, Inc. is called upon to
make extraordinary repairs or engage
in any extensive reconstruction or
rehabilitation, Xxxxxx, Inc. shall
receive an additional fee to the
Management Fee agreed upon by both
parties before commencing work or
services.
