EXHIBIT 10.1
Management Agreement between CNL Income Fund IX, Ltd. and
CNL Investment Company
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of this l1th day of April 1991, by and between CNL Income Fund X Ltd, a Florida
limited partnership (the Partnership"), and CNL Investment Company, a Florida
corporation (the "Manager").
WHEREAS, the Partnership intends to acquire, or enter into joint
ventures or partnerships which will acquire, certain real properties upon which
restaurants are to be located.
WHEREAS, the Partnership further intends to lease such properties, and
the buildings located thereon, on a "triple net" basis to operators or
franchisees of certain national or regional restaurants; and
WHEREAS, the Partnership desires to have the Manager perform the
management services specified in this Agreement with respect to such properties,
and the Manager desires to perform such services.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Partnership and the Manager
agree as follows.
1. Definitions. Whenever used in this Agreement, the following terms
shall have the following specified meaning. Unless the context otherwise clearly
indicates, all other terms used in this Agreement and having initial capital
letters shall have the same meanings as set forth in the Amended and Restated
Agreement of Limited Partnership of CNL Income Fund IX, Ltd., a form of which is
attached hereto as Exhibit A.
1.1 "Expenses" shall mean the actual cost of any and all
goods, materials, or services, other than overhead items, acquired by
the Manager from persons or entities not affiliated with the Manager
or the general partners of the Partnership, which are reasonably
necessary for the performance of any of its obligations under this
Agreement
1.2 "Joint Venture" shall mean any joint venture or
partnership in which the Partnership is a co-venturer or partner.
1.3 "Landord" shall mean any person or entity designated as
the landlord or lessor under any Lease.
1.4 "Lease" shall mean any lease entered into by the
Partnership or a Joint Venture with a Tenant for the lease of any
Property.
1.5 "Property" shall mean any real property owned by the
Partnership or a Joint Venture and described in Exhibit B, as such
exhibit may be amended from time to time by ageement of the parties,
including any buildings located on such real property and any
equipment located therein or thereon to the extent such equipment is
owned by the Partnership or a Joint Venture.
1.6 'Tenant", shall mean (i) any person or entity designated
as a tenant or lessee under a Lease, or (ii) any assignee or
subtenant of a Tenant pursuant to a valid assignment or subletting
under a Lease.
2. Services. The Manager shall perform the following management
services for the Partnership with respect to the Properties:
(a) assisting the Partnership and any Joint Venture in
negotiating Leases;
(b) visiting and inspecting each Property upon request of the
Partnership and at such other time or times as the Manager determines
is necessary or appropriate for the proper management of each such
Property;
(c) with respect to Properties wholly owned by the
Partnership, collecting all rents payable under each Lease,
depositing the rents so collected in accounts designated by the
Partnership, and rendering quarterly statements to the Partnership of
the rents so collected;
(d) at the request of the Partnership, inspecting the books,
records or financial statements of a Tenant to the extent permitted
under the terms of the applicable Lease, for the purpose of
determining whether such Tenant has paid or is paying the full amount
of rent required to be paid under such Lease;
(e) notifying the Partnership of any material default by a
Tenant under a Lease;
(f) except as otherwise directed by the Partnership, enforcing
any and all rights of each Landlord under the applicable Lease at
such times and in such manner and to such extent other than through
the initiation of legal proceedings against a Tenant, as the Manager
reasonably determines to be appropriate under the circumstances;
(g) providing reasonable assistance to the Partnership in
connection with any legal action brought by a Landlord against a
Tenant for default under a Lease;
(h) notifying the Partnership of any request, submission,
notice or other communication from a Tenant (other than rental
payments), and advising the Partnership with respect to the
appropriate response; and
(i) furnishing to the Partnership, within a reasonable time
after its request such information with respect to any Property as
the Partnership may from time to time reasonably request.
3. Compensation
3.1 Management Fee. Within sixty (60) days following the close of each
fiscal year of the Partnership, the Partnership shall, to the extent of
available Net Cash Flow, pay to the Manager an annual noncumulative management
fee equal to 1% of the gross revenues derived from Properties wholly owned by
the Partnership plus, in the case of Properties owned by any Joint Venture, the
Partnership's allocable share under the agreement governing the Joint Venture,
of gross operating revenues from any such Properties. Such fee, together with
fees paid by the Partnership to persons or entities unaffiliated with the
general partners of the Partnership for management services, shall not exceed
fees which are competitive for similar services in the same geographic area. The
management fee otherwise payable to the Manager during the first and last years
of this Agreement shall be prorated based on the number of days during the
Partnership's fiscal year for which this Agreement is in effect.
3.2 Expenses. The Partnership shall within 30 days after receipt of a
request by the Manager for reimbursement of Expenses reimburse the Manager for
all such Expenses. All such requests shall state in detail the nature of all
Expenses for which reimbursement is sought and shall be supported by appropriate
documentation.
4. Term of Agreement.
4.1 Commencement and Expiration. This Agreement shall commence as of the
date of this Agreement and, unless sooner terminated pursuant to Paragraph 4.2
hereof or by operation of law, or otherwise, shall expire at such time as the
Partnership no longer has an ownership interest in any Property.
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4.2 Termination. Either party may terminate this Agreement, without
penalty, by giving (60) days' prior written notice to the other party.
4.3 Obligations Surviving Expiration or Termination.
(a) In addition to any other obligations of the Partnership
which survive the expiration or termination of this Agreement, the
Partnership shall upon the expiration or termination of this Agreement
(i) promptly reimburse the Manager for all Expenses for which the
Manager seeks reimbursement and, (ii) pay to the Manager the management
fee payable under Paragraph 3.1 as soon after expiration or termination
of this Agreement.
(b) In addition to any other obligations of the Manager which
survive the expiration or termination of this Agreement the Manager
shall upon the expiration or termination of this Agreement (i) promptly
cause all hmds received from Tenants as payments under a Lease to be
deposited in the appropriate accounts designated by the Partnership, and
(ii) promptly deliver to the Partnership all records and documents in
its possession relating to the Properties. The Manager shall use its
best efforts to cooperate with the Partnership to accomplish an orderly
transfer of the management of the Properties to a party or parties
designated by the Partnership.
5. Indemnification.
5.1 By the Partnership. The Partnership releases and shall defend,
indemnify and hold harmless the Manager from all claims, losses, harm, costs,
liabilities, damages and expenses (including, but not limited to, attorneys'
fees) arising, whether before or after the expiration or termination of this
Agreement, out of or in connection with (a) the "Manager's" management of any
Property, or (b) any accident or injury (including death) to any person or
damage to any property or environment occurring in or about any Property or in
connection with the possession, use, or occupancy of any Property; provided,
however, that the Partnership shall have no obligation under this Paragraph 5.1
to release, defend, indemnify or hold harmless the Manager from any such claim
loss, harm, cost, liability, damage or expense, if the same arises out of (i) an
act by the Manager which is not taken in good faith or in a manner reasonably
believed to be in the best interests of the Partnership, or (ii) conduct by the
Manager constituting negligence, willful misconduct or breach of any of its
obligations under this Agreement.
5.2 Indemnification on by the Manager. The Manager releases and shall
defend, indemnify and hold harmless the Partnership from all claims, losses,
harm, costs, liabilities, damages and expenses (including but not limited to,
attorneys' fees) arising whether before or after the expiration or termination
of this Agreement solely out of conduct by the Manager constituting negligence,
willful misconduct or breach of any of its obligations under this Agreement.
6. Miscellaneous
6.1 Survival. Paragraphs 4.3 and 5 and all provisions of this Agreement
which may reasonably be interpreted or construed as surviving the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement for a period of ten years.
6.2 Independent Contractor. The parties hereby recognized that the
Manager is serving as an independent contractor under this Agreement Nothing
contained in this Agreement shall be interpreted or construed to create a
partnership relationship between the Manager and the Partnership.
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6.3 Notices. Any notice, approval, request, authorization, consent,
direction or other communication required or permitted under this Agreement
shall be given in writing and shall be deemed to be delivered when delivered in
person or deposited in the United States mail properly addressed and stamped
with the required postage, registered or certified mail, return receipt
requested, to the intended recipient as set forth below.
If to the Partnership: CNL Income Fund DC, lAd.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
If to the Manager CNL Investment Company
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Either party may change its address specified above by giving the other party
notice of such change in accordance with this Paragraph 6.3.
6.4 No Third Party Beneficiaries. Notwithstanding anything to the
contrary in this Agreement, the parties do not intend any person or entity not a
party to this Agreement to be a beneficiary of any provision of this Agreement,
and no provision of this Agreement shall be interpreted or construed as being
for the benefit of any third party. Further, no third party shall by virtue of
any provision of this agreement have a right of action or an enforceable legal
remedy against either party to this Agreement.
6.5 Nonwaiver. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, such provision or
right shall be and remain in full force and effect.
6.6 Successors and Assigns. Neither party shall assign (voluntarily, by
operation of law or otherwise) this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of the other party.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of and be enforceable by, the parties hereto and their respective
successors and assigns.
6.7 Entire Agreement. This Agreement sets forth the entire agreement of
the parties with regard to the subject matter hereof and supersedes any and all
prior agreements of the parties with respect thereto.
6.8 Amendment. No change, amendment or modification of any provision of
this Agreement shall be valid unless set forth in a written instrument signed by
the party to be bound thereby.
6.9 Applicable Law. This Agreement shall be interpreted, construed and
enforced in an respects in accordance with the laws of the State of Florida.
IN WITNESS THEREOF, the parties have executed this Agreement as of the
date first-above written.
The Partnership: CNL INCOME FUND X, LTD.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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XXXXX X. XXXXXX, XX., GENERAL PARTNER
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By: /s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, GENERAL PARTNER
By: CNL REALTY CORPORATION
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxxx, Xx.
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XXXXX X. XXXXXX XX., PRESIDENT
The Manager: CNL INVESTMENT COMPANY
By: Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, PRESEDENT
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EXHIBIT B
[Provide name and address of each Property under management.]
(List of Properties Omitted)
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