EX-10.81
2
pmabetweenpmsranduhi.htm
PROPERTY MANAGEMENT AGREEMENT BETWEEN PMSR AND U-HAUL
Exhibit
10.81
PROPERTY
MANAGEMENT
AGREEMENT
THIS
PROPERTY MANAGEMENT AGREEMENT (this
"Agreement")
is
entered into as of June 25, 2005 among PM
Partners,
L.P., a Texas limited partnership ("Owner"),
and
the
subsidiaries of U-Haul International, Inc. set forth on the signature page
hereto (collectively, "Manager").
RECITALS
A.
Owner
owns the real property and self-storage related improvements thereon identified
on Exhibit A hereto (hereinafter, collectively the "Property").
B.
Owner
intends that the Property be rented on a space-by-space retail basis to
corporations, partnerships, individuals and/or other entities for use as
self-storage facilities.
C.
Owner
desires that Manager manage the Property and Manager desires to act as the
property manager for the Property, all in accordance with the terms and
conditions of this Agreement and as more specifically designated on Exhibit
A
hereto.
NOW,
THEREFORE, in consideration
of the mutual covenants herein contained, the parties hereto hereby agree as
follows.
1.
Employment.
(a)
Owner
hereby retains Manager, and Manager agrees to act as manager of the Property
upon the terms and conditions hereinafter set forth.
(b)
Owner
acknowledges that Manager, and/or Manager affiliates, is in the business of
managing self-storage facilities and businesses conducted thereat. including,
but not limited to, the sale of packing supplies and rental of trucks and
equipment both for its own account and for the account of others. It is hereby
expressly agreed that notwithstanding this Agreement, Manager and such
affiliates may continue to engage in such activities, may manage facilities
other than those presently managed by Manager and its affiliates (whether or
not
such other facilities may be in direct or indirect competition with Owner)
and
may in the future engage in other business which may compete directly or
indirectly with activities of Owner.
(c)
In
the performance of its duties under this Agreement, Manager shall occupy
the position of an independent contractor with respect to Owner.
Nothing
contained
herein shall be
construed as making the parties hereto (or any of them) partners or joint
venturors,
nor construed as making Manager an employee of Owner.
(d)
Owner
acknowledges and agrees that, with respect to those properties listed on Exhibit
A hereto that are located within the State of Texas (collectively, the "Texas
Properties"), that the Manager will subcontract the management of the Texas
Properties to Private Mini Storage Manager, Inc., a Texas corporation (the
"Texas Manager") on the terms and conditions set forth in the
Property
Management Agreement attached hereto as Exhibit C attached hereto.
2.
Duties
and Authoritv of Manager.
On
Owner's behalf, and subject to the terms and conditions of this
Agreement:
(a) General
Duties and Authority. Manager
shall have the sole and exclusive duty and authority to fully manage the
Property and supervise and direct the business and affairs associated or related
to the daily operation thereof, to collect on behalf of Owner all revenues
related to the Property, to pay on behalf of Owner all expenses of the Property
(including payment of all debt service to the mortgage lender with respect
to
the Property and any other debt owed by Owner to any other lender or payee)
and
to execute on behalf of Owner such documents and instruments as, in the sole
judgment of Manager, are reasonably necessary or advisable under the
circumstances in order to fulfill Manager's duties hereunder. Such duties and
authority shall include, without limitation, those set forth below.
(b) Renting
of the Property. Manager
shall establish policies and procedures for the marketing activities for the
Property, and shall advertise the Property through such media as Manager deems
advisable, including, without limitation, advertising with the Yellow Pages.
Manager's marketing activities for the Property shall be consistent with the
scope and quality implemented by Manager and its affiliates at any other
properties managed by Manager or its affiliates. Manager shall have the sole
discretion, which discretion shall be exercised in good faith. to establish
the
terms and conditions of occupancy by the tenants of the Property, and Manager
is
hereby authorized to enter into rental agreements in the ordinary course of
business on behalf and for the account of Owner (as its agent) with such
tenants and to collect rent from such tenants on behalf and for the account
of
Owner. Manager may jointly advertise the Property with other properties owned
or
managed by Manager or its Affiliates, and in that event, Manager shall
reasonably allocate the cost of such advertising among such
properties.
(c)
Repair, Maintenance and Improvements. Manager shall make,
execute, supervise and have control over the making and executing of all
decisions concerning the acquisition of furniture, fixtures and supplies for
the
Property, and may purchase lease or otherwise acquire the same on behalf of
Owner, as its agent. Manager shall make and execute, or supervise and have
control over the making and executing of all decisions concerning the
maintenance, repair, and landscaping of the Property, provided, however, that
such maintenance, repair and landscaping shall be consistent with the
maintenance, repair and landscaping implemented by Manager and its affiliates
at
any other properties managed by Manager or its affiliates. Manager shall, on
behalf of Owner, negotiate and contract for the installation of all capital
improvements related to the Property; provided, however, that Manager agrees
to
secure the prior written approval of Owner on all such expenditures in excess
of
any threshold amounts set forth in any loan documents set forth on Exhibit
C
hereto (collectively, "Loan Documents").
(d)
Personnel. Manager shall select all vendors, suppliers,
contractors, subcontractors and employees with respect to the Property and
shall
hire, discharge and supervise all labor and employees required for the operation
and maintenance of the Property. Any employees so hired shall be employees
of
Manager, and shall be carried on the payroll of Manager. Employees may include,
but need not be limited to, on-site resident managers, on-site assistant
managers, and relief managers located, rendering services, or performing
activities on the Property in connection with its operation and management.
The
cost of employing such persons shall not exceed prevailing rates for comparable
persons performing the same or similar
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services
with respect to real estate similar to the Property in the general vicinity
of
each respective Property. Manager shall be responsible for all legal and
insurance requirements relating to its employees.
(e)
Service Agreements. Manager shall negotiate and execute on
behalf of Owner such agreements which Manager deems necessary or advisable
for
the furnishing of utilities, services, concessions and supplies, for the
maintenance, repair and operation of the Property and such other agreements
which may benefit the Property or be incidental to the matters for which Manager
is responsible hereunder.
(f)
Other Decisions. Manager shall make the decisions in connection
with the day-to-day operations of the Property.
(g)
Regulations and Permits. Manager shall comply in all respects
with any
statute,
ordinance, law, rule, regulation or order of any governmental or regulatory
body, having jurisdiction over the Property (collectively, "Laws"), respecting
the use of the Property or the maintenance or operation thereof. Manager shall
apply for and obtain and maintain, on behalf of Owner, all licenses and permits
required or advisable (in the reasonable judgment of Manager) in connection
with
the management and operation of the Property. Notwithstanding the foregoing,
Manager, as agent for Owner, shall be permitted to contest any applicable Laws
to the extent and pursuant to the same conditions that Owner is permitted to
contest any Laws under the loan Documents.
(h)
Records and Reports of Disbursements and Collections. Manager
shall establish, supervise, direct and maintain the operation of a system of
record keeping and bookkeeping with respect to all receipts and disbursements
in
connection with the management and operation of the Property. The books, records
and accounts shall be maintained at the offices of U-Haul International, Inc.
("UHI"), or at such other location as Manager shall determine from time to
time,
and shall be available and open to examination and audit by Owner its
representatives, and, subject to the terms of the Loan Documents, any lender
under any such Loan Documents or such lender's representative. On or before
sixty (60) days after the close of each quarter, Manager shall cause to be
prepared and delivered to Owner a statement on a per Property basis, of
receipts, expenses and charges, together with a statement, on a per-Property
basis, of the disbursements made by Manager during such period on Owner's
behalf. Notwithstanding the foregoing, manager, as agent for Owner, shall
maintain such books and records and furnish such financial reports and operating
statements to Lender as required of Owner under the Loan Documents.
(i)
Collection. Manager shall be responsible for the billing and
collection of all accounts receivable and for payment of all accounts payable
with respect to the Property and shall be responsible for establishing policies
and procedures to minimize the amount of bad debts.
(j)
Legal Actions. Manager shall cause to be instituted, on behalf
and in its name as agent for Owner or in the name of Owner as appropriate,
any
and all legal actions or proceedings Manager deems necessary or advisable to
collect charges, rent or other income due to Owner with respect to the Property
and to oust or dispossess tenants or other persons
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unlawfully
in possession under any lease, license, concession agreement or otherwise,
and
to collect damages for breach thereof or default thereunder by such tenant,
licensee, concessionaire or occupant, subject to any limitations on such actions
set forth in the Loan Documents.
(k)
Insurance.
Manager
shall obtain and maintain (or cause to be obtained and maintained) in full
force
and effect the insurance with respect to the Property and the operation of
Owner's and Manager's business operations thereat, and Manager's employees,
as
required by Owner and consistent with the Loan Documents.
(I)
Taxes.
To the
extent not impounded pursuant to the Loan Documents, Manager shall pay on behalf
of Owner, prior to delinquency, all real estate taxes, personal property taxes,
and all other taxes assessed to, or levied upon, the Property.
(m) Limitations
on ManagerAuthority.
Notwithstanding anything to the contrary set forth in this Section 2, Manager
shall not, without obtaining the prior consent of Owner, (i) rent storage space
in the Property by written lease or agreement for a stated term in excess of
one
year unless such lease or agreement is terminable by the giving of not more
than
thirty (30) days written notice, (ii) alter the building or other structures
of
the Property in violation of the Loan Documents; (iii) make any other agreements
which exceed a term of one year and are not terminable on thirty (30) day's
notice at the will of Owner, without penalty, payment or surcharge; (iv) act
in
violation of any Law, or (v) operate or manage the Properties in any manner
which will violate any term or condition or the Loan Documents.
(n)
Shared
Expenses.
Owner
acknowledges that certain economies may be achieved with respect to certain
expenses to be incurred by Manager on behalf of Owner hereunder if materials,
supplies, insurance or services are purchased by Manager in quantity for use
not
only in connection with Owner's business at the Property but in connection
with
other properties owned or managed by Manager or its affiliates. Manager shall
have the right to purchase such materials, supplies, insurance and/or services
in its own name and charge Owner a pro rata allocable share of the cost of
the
foregoing for such materials, supplies, insurance or services received by Owner;
provided, however, that the pro rata cost of such purchase to Owner shall not
result in expenses that are either materially greater than the expenses of
other
"U-Haul branded" locations in the general vicinity of the applicable Property
or
greater than would otherwise be included at competitive prices and terms
available in the area where the Property is located; and provided further,
Manager shall give Owner and lender under the Loan Documents ("Lenders") access
to records (at no cost to Owner or Lender) so Owner and Lender may review any
such expenses incurred.
(0)
Deposit
of Gross Revenues.
All
Gross Revenue (as hereinafter defined) shall be deposited by Manager unto bank
accounts at local depository institutions and thereafter may be swept by UHI
into a UHI concentration account. Manager shall assure that Owner's funds are
tracked and segregated electronically from other UHI funds on a property by
property basis. Any such funds of the Owner in the UHI concentration account
shall be used solely to pay costs and expenses of the Properties as contemplated
by this Agreement and shall otherwise be for the benefit of the Properties
and
Owner. No funds of Owner contained in the UHI concentration account may be
used
for the benefit of any property or person (including, without limitation, UHI
and Manager) other than Owner and the Properties. Subject to the terms
and
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conditions
of the Loan Documents, Gross Revenue of the Owner shall be applied first to
the
repayment of Owner's senior mortgage debt with respect to the Property and
other
requirements of Owner's senior mortgage loan agreements, and then to Manager
in
reimbursement of expenses and for management fees as provided under Section
4
below.
(p)
Obligations
under Loan Documents and other Material Contracts. Manager
shall take such actions as are necessary or appropriate under the circumstances
to ensure that Owner is in compliance with the terms of the Loan Documents
and
any other material agreement relating to the Property to which Owner is a party.
Nothing herein contained shall be deemed to obligate Manager to fund from its
own resources any payments owed by Owner under the Loan Documents or otherwise
be deemed to make Manager a direct obligor under the Loan Documents or other
material contract of Owner.
(q)
Management
Standard.
Manager
shall perform all of its obligations under this Agreement in a professional
manner consistent with the standards it employs at all of its managed locations
and in any event, consistent with the standard set forth in the Loan
Documents.
3.
Duties
of
Owner.
Owner
shall cooperate with Manager in the performance of Manager's duties under this
Agreement and to that end, upon the request or Manager, to provide reasonable
office space fix Manager employees on the premises of the Property (to the
extent available) and to give Manager access to all files, books and records
of
Owner relevant to the Property. Owner shall not unreasonably withhold or delay
any consent or authorization to Manager required or appropriate under this
Agreement, subject to the conditions or the Loan Documents.
4. Compensation
of Manager.
(a)
Reimbursement of Expenses. Manager shall be entitled to
reimbursement, on a monthly basis, for all out-of-pocket reasonable and
customary expenses actually incurred by Manager in the discharge of its duties
hereunder, including, without limitation, all expenses incurred on Owner's
behalf pursuant to Section 2 of this Agreement, including the cost to Manager
of
the personnel pursuant to Section 2( d). Such expense reimbursement shall be
the
obligation of Owner, whether or not Gross Revenues are sufficient to pay such
amounts.
(b)
Management Fee. Owner shall pay to Manager as the full amount
due for the services herein provided a monthly fee (the "Management Fee") which
shall be five percent (5%) of the Property's trailing twelve month Gross Revenue
divided by twelve (12) ("Base Fee"), plus an annual incentive fee (the
"Incentive Fee") based upon the performance of the Property as set forth on
Exhibit B hereto. For purposes of this Agreement, the term "Gross Revenue"
shall
mean all receipts (excluding security deposits unless and until Owner recognizes
the same as income) of Manager or Owner (whether or not received by Manager
on
behalf or for the account of Owner) arising from the operation of Owner's
business at the Property, including without limitation, rental payments of
self-storage customers at the Property, vending machine or concessionaire
revenues, maintenance charges, if any, paid by the tenants of the Property
in
addition to basic rent and parking fees, if any. Gross Revenue shall be
determined on a cash
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basis.
The Management Fee shall be paid promptly, in arrears within thirty (30) days
of
the end of each month.
Except
as
provided in this Section 4, it is further understood and agreed that Manager
shall not be entitled to additional compensation of any kind in connection
with
the performance by it of its duties under this Agreement.
(c)
Inspection
of Books and Records.
Owner
shall have the right, upon prior reasonable notice to Manager, to inspect
Manager's books and records with respect to the Property, to assure that proper
fees and charges are assessed hereunder. Manager shall cooperate with any such
inspection. Owner shall bear the cost of any such inspection; provided, however,
that if it is ascertained that Manager has overcharged Owner by more than 5%
in
any given quarter, the cost of such inspection shall be borne by Manager.
Manager shall promptly reimburse Owner for any overpayment.
5.
Use
of
Trademarks, Service Marks and Related Items.
(a)
GJR
Investments, Inc. ("GJR") hereby grants Manager, as its agent, the non-exclusive
right to operate the Property under the name and flag of "Private Mini Storage"
or any derivation thereof (collectively, "Private Mini"). Accordingly, in
executing its duties hereunder, Manager shall have the non-exclusive right
to
use Private Mini signage, stationary, uniforms and the like as well as any
name,
xxxx, slogan, caricature, design or other trade or service xxxx incident to
the
foregoing. It is further understood and agreed that the Private Mini name and
all such marks, slogans, caricatures, designs and other trade or service items
shall remain and be at all times the sole and exclusive property of GJR, and
that except as expressly provided in this Agreement, Manager shall have no
right
whatsoever therein.
GJR
has
granted and may grant others the right to use Private Mini. Except as set forth
herein, Manager acknowledges that GJR has the sole and exclusive right to
license Private Mini. Manager further agrees that all use of Private Mini by
Manager shall inure to the benefit of Private Mini. As between GJR and Manager,
all rights not specifically granted to Manager are reserved to GJR. Manager
shall cooperate with GJR, at GJR's expense in the execution, filing, and
prosecution of any trademark or trade name applications that GJR may desire
to
file, and for that purpose Manager will supply to GJR, upon GJR 's written
request and at GJR 's expense, such information as may be reasonably required.
Manager shall inform GJR forthwith if Manager learns of any adoption, use,
or
registration of any trademark, trade name, or corporate name that could infringe
or impair or tend to impair GJR's rights in Private Mini. Manager shall provide
complete information and assistance to GJR concerning such infringements. Upon
learning of such infringements, GJR shall be entitled, at its sole discretion
and expense, to take such action, if any as GJR considers necessary or
appropriate to enforce its rights, including without limitation, action to
suppress or eliminate the infringements. Manager shall cooperate with GJR,
and
its attorneys and other authorized representatives, at GJR's expense, in any
investigation or legal proceedings or action which GJR may deem desirable to
protect its rights in Private Mini. Manager shall use commercially reasonable
efforts to include the trademark notice on all product and other materials
bearing any of Private Mini's trademarks, service marks or other protected
logo.
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(b)
Notwithstanding the foregoing, Owner has the right, at Owner's sole cost and
expense, to require that Manager operate the Property under the name and flag
of
U-Haul®. In the event Manager (or UHI) requires that the Properties (or any of
them) be operated under the U-Haul ® name and flag, such conversion shall be at
UHI's sole cost and expense. In such event, Owner acknowledges and agrees that
the name, trademark and service xxxx "U-Haul", and related marks, slogans,
caricatures, designs and other trade or service items (the "Manager
Trade Marks") shall
be
utilized for the non-exclusive benefit of Owner in the rental and operation
of
the Property, and in comparable operations elsewhere. It is further understood
and agreed that the name and all such marks, slogans, caricatures, designs
and
other trade or service items shall remain and be at all times the property
of
Manager and its affiliates, and that except as expressly provided in this
Agreement, Owner shall have no right whatsoever therein. At the election and
sale cost of Owner, Owner shall have the right to require Manager to convert
the
sign faces, stationary, uniforms and the like at the Property to the name
"U-Haul." Upon
termination of this Agreement at any time for any reason, all such use by and
for the benefit of Owner of any such name, xxxx, slogan, caricature, design
or
other trade or service item in connection with the Property shall be terminated
and any signs bearing any of the foregoing shall be removed from view and no
longer used by Owner. It is understood and agreed that Manager will use and
shall be unrestricted in its use of the U-Haul® name, xxxx, slogan caricature,
design or other trade or service item in the management and operation of other
storage facilities both during and after the expiration or termination of the
term of this Agreement.
6.
Default
Termination.
(a)
Any
material failure by Manager or Owner (a “Defaulting
Party”) to
perform its duties or obligations hereunder (other than a default by Owner
under
Section 4 of this Agreement), which material failure is not cured within thirty
(30) calendar days after receipt of written notice of such failure from the
non-defaulting party, shall constitute an event of default hereunder; provided,
howcver, the foregoing shall not constitute an event of default hereunder in
the
event the Defaulting Party commences cure of such material failure within such
thirty (30) day period and diligently prosecutes the cure of such material
failure thereafter but in no event shall such extended cure period exceed ninety
(90) days from the date of receipt by the non-defaulting party of written notice
of such material default; provided further, however that in the event such
material failure constitutes a default under the terms of the Loan Documents
and
the cure period for such matter under the Loan Documents is shorter than the
cure period specified herein, the cure period specified herein shall
automatically shorten such that it shall match the cure period for such matter
as specified under the Loan Documents. In addition, following notice to Manager
of the existence of any such material failure by Manager, Owner and Lender
shall
each have the right to cure any such material failure by Manager, and any sums
so expended in curing shall be owed by Manager to such curing party and may
be
offset against any sums owed to Manager under this Agreement.
(b)
Any
material failure by Owner to perform its duties or obligations under Section
4,
which material failure is not cured within thirty (30) calendar days after
receipt of written notice of such failure from Manager, shall constitute an
event of default hereunder.
(c)
Upon
an event of default hereunder, the non-defaulting party shall have the right
to
terminate this Agreement upon notice to the defaulting party.
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(d)
In
addition to the foregoing, Manager shall have the right to terminate this
Agreement, with or without cause, by giving not less than ninety (90) days'
written notice to Owner pursuant to Section 14 hereof.
(e)
Upon
termination of this Agreement, (x) Manager shall promptly return to Owner all
monies, books, records and other materials held by Manager for or on behalf
of
Owner and shall otherwise cooperate with Owner to promote and ensure a smooth
transition to the new manager and (y) Manager shall be entitled to receive
its
Management Fee and reimbursement of expenses through the effective date of
such
termination, including the reimbursement of any prepaid expenses for periods
beyond the date of termination (such as Yellow Pages advertising).
(f)
Notwithstanding any provision of this Section 6 to the contrary, Manager shall
not cease managing the Property until such time as a replacement property
manager consistent with the requirements of the Loan Documents commences
managing the Property.
7.
Indemnification.
To
the
fullest extent permissible under applicable law, Manager agrees to indemnify,
defend, protect and hold the Owner harmless from any and all costs, expenses
attorneys' fees, suits, liabilities, judgments, damages and claims in connection
with the operation of
the
Property arising from the willful misconduct or negligence of Manager or any
of
Manager's affiliates or the breach by Manager of any term or provision of this
Agreement.
To
the
fullest extent permissible under applicable law, Owner agrees to indemnify,
defend, protect and hold the Manager, its agents and employees harmless from
any
and all costs, expenses, attorneys' fees, suits, liabilities, judgments, damages
and claims in connection with the operation of the Property arising from the
willful misconduct or negligence of Owner or Owner's agents or employees.
Owner's liability is expressly limited to actions arising out of affirmative
acts by Owner, or Owner's agents, employees or contractors in connection with
the operation, construction and development of the Property, any building
defects associated with the Property, and any environmental problems of the
Property arising prior to the date hereof.
Notwithstanding
the foregoing or any other provision of this Agreement, Owner hereby releases
Manager from liability for and agrees to indemnify and hold harmless Manager,
its
agents and employees with respect to any and all claims, liability, costs and
expenses of
Manager,
its agents and employees may incur in connection with the actions taken in
the
performance of their duties pursuant to the provisions of this Agreement,
provided such action(s) is not unreasonably inconsistent with Manager's
management policies with respect to other self-storage facilities it manages
and
is taken in good faith and in a manner reasonably believed to be in compliance
with the terms of this Agreement and in the best interest of Owner; and provided
further, that Owner shall have no obligation to indemnify Manager or any person
for Manager's or any person's negligence or fraudulent actions.
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8.
Assignment.
Manager
shall not assign this Agreement to any party without the consent of Owner,
which consent shall not be unreasonably withheld; provided however, Manager
shall have the right to assign this Agreement, or any portion thereof and any
duties hereunder to any UHI affiliated entity or Private Mini Storage Manager,
Inc., or its affiliates. Notwithstanding anything to the contrary contained
herein, Manager shall not assign this Agreement except in accordance with,
and
consistent with, the terms and conditions of the Loan Documents.
9.
Standard
for Property Manager’s Responsibility. Manager
shall perform its obligations hereunder according to industry standards, in
good
faith, and in a commercially reasonable manner.
10.
Estoppel
Certificate. Each
of
Owner and Manager agree to execute and deliver to one another, from time to
time, within ten (10) business days of the requesting party's written request,
a
statement in writing certifying, to the extent true, that this Agreement is
in
full force and effect, and acknowledging that there are not, to such parties
knowledge, any uncured defaults or specifying such defaults if they are claimed
and any such other matters as may be reasonably requested by such requesting
party.
11.
Term;
Scope.
Subject
to earlier termination as provided in this Agreement, this Agreement shall
have
an initial term of ten years, provided however the Manager shall have the right
to terminate this Agreement as to any individual Property at such time as the
Loan Documents have terminated in accordance with the terms of the Loan
Documents (for instance due to a significant casualty or condemnation) with
respect to such individual Property.
12.
Headings.
The
headings contained herein are for convenience of reference only and are not
intended to define, limit or describe the scope or intent or any provision
of
this Agreement.
13.
Governing
Law. The
validity of this Agreement, the construction of its terms and the interpretation
of the rights and duties of the parties shall be governed by the internal laws
of the State of
Nevada.
14.
Notices.
Any
notice required or permitted herein shall be in writing and shall be personally
delivered or mailed first class postage prepaid or delivered by an overnight
delivery service to the respective addresses of the parties set forth above
on
the first page of this Agreement, or to such other address as any party may
give
to the other in writing. Any notice required by this Agreement will be deemed
to
have been given when personally served or one day after delivery to an overnight
delivery service or five days after deposit in the first class mail. Any notice
to Owner shall be to the attention of Five SAC Self Storage Corporation, 000
Xxxxx Xxxxxxx Xxxx
0
Xxxxx,
Xxxx, XX 00000, Attn: President and GJR Investments, Inc., 00000 Xxxxxxxxxx
Xxxxx, Xxxxxxx. Xxxxx 00000, Attn.: Xxxx Xxxxxxxx. Any notice to Manager shall
be to the attention of c/oU-Haul
International, Inc. Legal Department, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX
00000, Attn: Xxxxxxxx X. Xxxxxxx.
15.
Severability.
Should
any term or provision hereof be deemed invalid, void or unenforceable either
in
its entirety or in a particular application, the remainder of this Agreement
shall nonetheless remain in full force and effect and, if the subject term
or
provision is deemed to be invalid, void or unenforceable only with respect
to a
particular application, such term or provision shall remain in full force and
effect with respect to all other applications.
16.
Successors.
This
Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their permitted assigns and successors in
interest.
17.
Attorneys'
Fees. If
it
shall become necessary for any party hereto to engage attorneys to institute
legal action for the purpose of enforcing their respective rights hereunder
or
for the purpose of defending legal action brought by the other party hereto,
the
party or parties prevailing in such litigation shall be entitled to receive
all
costs, expenses and fees (including reasonable attorneys' fees) incurred by
it
in such litigation (including appeals).
18.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which
shall
be
deemed
an original, but all of which together shall constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the
undersigned execute
this
Agreement as of the date
set
forth
above.
Owner:
PM
Partners,
LP.,
a
Texas
Limited
Partnership
By:
Mini
Partners, Inc.,
GJR Investments, Inc., joins as to Section 5(a)
a
Texas
corporation, its General Partner
By:_________ By:
__________
Its:
_________ Its:
__________
Manager:
U-Haul
Co. of South Carolina, Inc.,
a
South Carolina corporation
By:___________
Its:___________
U-Haul
Co. of North Carolina, Inc.
a
North Carolina Corporation
By:___________
Its:___________
U-Haul
Co. of Florida, Inc.,
a
Florida Corporation
By:___________
Its:___________
U-Haul
Co. of Georgia, Inc.,
a
Georgia corporation
By:___________
Its:___________
U-Haul
Co. of Alabama, Inc.,
an
Alabama corporation
By:____________
Its:____________
U-Haul
Co. of Texas, Inc.,
a
Texas corporation
By:____________
Its:_____________
|
103rd
|
0000
000xx
Xxxxxx
|
Xxxxxxxxxxxx
|
Xxxxxxx
|
|
Castle
Hills
|
0000
XX Xxxx000
|
Xxx
Xxxxxxx
|
Xxxxx
|
|
Central
Expressway
|
00000
X. X. Xxxxxxxxxx
|
Xxxxxx
|
Xxxxx
|
|
Cutten
|
0000
XX 0000 Xxxx
|
Xxxxxxx
|
Xxxxx
|
|
Eastlake
|
0000
Xxxxxx Xxxx
|
Xxxxxxx
|
Xxxxxxx
|
|
|
|
Columbia
|
South
|
| Elmwood |
0000
Xxxxxxx Xxxxxx
|
Carolina
|
|
Florida
Avenue
|
0000
X Xxxxxxx Xxx
|
Xxxxx
|
Xxxxxxx
|
|
Fountainview
|
0000
Xxxxxxxx
|
Xxxxxxx
|
Xxxxx
|
|
Highway
620
|
00000
Xxxxxxx 000 Xxxxx
|
Xxxxxx
|
Xxxxx
|
|
Huntsville
|
0000
Xxxxxxxxxx Xxxxx
|
Xxxxxxxxxx
|
Xxxxxxx
|
|
La
Marque
|
0000
Xxxx Xxxxxxx
|
XxXxxxxx
|
Xxxxx
|
| | | |
North
|
|
Lancaster
|
00000
Xxxxxxxxx Xxxxxxx
|
Xxxxxxxxx
|
Xxxxxxxx
|
|
League
City
|
0000
X. Xxxx Xxxxxx
|
Xxxxxx
Xxxx
|
Xxxxx
|
|
Melbourne
|
000
X. Xxxxxx Xxxx Xxxx.
|
Xxxxxxxxx
|
Xxxxxxx
|
|
Monroe
|
0000
Xxxxx Xxxxxx Xxxxxx
|
Xxxxxxxxxxx
|
Xxxxxxx
|
|
Mountainbrook
|
0000
Xxxxxxx 000 Xxxx
|
Xxxxxxxxxx
|
Xxxxxxx
|
|
Xxxxxx
Ferry
|
0000
Xxxxxxx Xxxxxx Xx
|
Xxxxxxxxxx
|
Xxxxxxx
|
|
Palm
Harbor
|
00000
XX Xxxxxxx 00
|
Xxxx
Xxxxxx
|
Xxxxxxx
|
| | | |
North
|
|
Safe
Harbor
|
0000
Xxxxxxxxxxxx Xx
|
Xxxxxxxxx
|
Xxxxxxxx
|
|
Xxxxxxxxxx
|
13240
Xxxxxxxxxx
|
Largo
(Tampa)
|
Florida
|
|
Westbelt
|
00000
X.X. Xxxxxxx
|
Xxxxxxx
|
Xxxxx
|
|
Westbelt
RV (All Star RV)
|
0000
XX Xxxxx Xxxxx
|
Xxxxxxx
|
Xxxxx
|
|
Wycliffe
|
00000
Xxx Xxxx Xxxx
|
Xxxxxxx
|
Xxxxx
|
12
Management
Fee Incentives
The
following Incentive Fee shall be calculated and, if and to the extent earned,
paid, annually after the end of each fiscal year of Owner:
In
the
event that net operating income of the Property equals or exceeds 110% (but
less
than 120%) of principal and interest under all Loan Documents ("P&I") for
the prior fiscal year being calculated, the Incentive Fee for such year shall
be 1 % of the Property's Gross Revenue for such fiscal year.
In
the
event that net operating income of the Property equals or exceeds 120% (but
less
than 130%) of P&I for the prior fiscal year being calculated, the Incentive
Fee for such year shall be 2% of the Property's Gross Revenue for such
year.
In
the
event that net operating income of the Property equals or exceeds 130%) (but
less than 140%) of P&I for the prior fiscal year being calculated, the
Incentive Fee for such year shall be 3% of the Property's Gross Revenue for
such
fiscal year.
In
the
event that net operating income of the Property equals or exceeds 140% (but
less
than 150%) of P&I for the prior fiscal year being calculated, the Incentive
Fee for such year shall be 4% of the Property's Gross Revenue for such fiscal
year.
In
the
event that net operating income of the Property equals or exceeds 150% of
P&I for the prior fiscal year being calculated the Incentive Fee for such
year shall be 6% of the Property's Gross Revenue for such fiscal
year
13
Exhibit
C
Sub-Management
Agreement for Texas Properties
14
Friday,
August 12,
2005
9:36:39
AM Page 1 of 2
Printed
by: Xxxxxxxx Xxxxxxx Title: RE: submanagement agreement: uhaul
From:
Friday,
August 12, 20059:18:51 AM Message
<xxx@xxxxxxx-xxxx.xxx>
Subject
To:
RE:
submanagement agreement
Xxxxxxxx
Xxxxxxx
Cc:
"Xxxxxx
Xxxxxxxxxx" <wep@private-minicom> dennis-
x'xxxxxx@xx.xxxxx.xxx
Attachments:
AttachO.
html
We
managed the Texas properties through Thursday, August 4, 2005.
Our
submanagement agreement
terminated that day, subject to only the payment of the management fees that
we
earned through that day. Xxxxxx Xxxxxxxxxx has provided Xxxxxx with a detail
of
those fees for his approval. We would appreciate prompt payment since our cash
is tight. Thank you.
Xxxx
Xxxxxxxx Private Mini Storage 00000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xx 00000
713-706-4531 - Office 7 J 3-628- 7640 - Cell
0
00-000-00 ! 0 - Fax
Original
Message-----
From:
Xxxxxxxx Xxxxxxx rmailto:xxxxxxxx
xxxxxxx@uhaul.coml Sent:
Friday, August 12, 2005 10:49 AM
To:
dlm@Drivate-minLcom
Subject:
submanagement agreement
Xxxx
-
Can you
please send me a quick email confirmation acknowledging the agreement of Private
Mini Storage Manager, Inc. that the submanagement agreement for the Texas
properties was terminated, and the effective date of such termination. Thanks.
I
just need to have this for my files. Xxxxxxxx
Xxxxxxxx
X. Xxxxxxx U-Haullnternational, Inc, 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx, XX
00000
Ph.
(000)
000-0000 Fax (000) 000-0000
Exhibit
D
Loan
Documents
For
purposes of this Agreement, "Loan Documents" shall mean,
collectively:
-Loan
Agreement between Owner and GMAC Commercial Mortgage Corporation dated on or
about the date hereof, and all Loan Documents as defined therein, including
without limitation the Lockbox Deposit Account Control Agreement.
-
The
mezzanine loans made by the parent entities of Owner, in favor of GMAC
Commercial Mortgage Corporation on or about the date hereof.
-Promissory
note made by Private Mini Storage Realty, L.P. to the order of AMERCO, dated
on
or about the date hereof, in the original face amount of approximately
$55,500,000.
15
