EXHIBIT 10.4
Commercial
MANAGEMENT AGREEMENT
BETWEEN
CONTINENTAL MORTGAGE AND EQUITY TRUST
("OWNER")
AND
CARMEL REALTY SERVICES, LTD.
("MANAGER")
DATED AS OF FEBRUARY 1, 1998
MANAGEMENT AGREEMENT
Recitals
Article I - Appointment; Term of Agreement
1.01 Appointment
1.02 Term
1.03 Termination For Cause
Article II - Responsibilities of Manager
2.01 Standard of Care
2.02 Operation of Property
2.03 Employees
2.04 Enforcement of Leases
2.05 Compliance with Leases, Laws and Mortgages
2.06 Notification to Owner
2.07 Books and Records
2.08 Reports and Reconciliation of Account
2.09 Contracts
2.10 Special Services
2.11 Property Taxes
2.12 Construction Management
Article III - Bank Accounts
3.01 Operating Account
3.02 Security Deposits
Article IV - Budgets and Expenditures
4.01 Business Plan
4.02 Expenses Paid from Operating Account
4.03 Insufficient Income
4.04 Limitation on Payments
Article V - Indemnification and Insurance
5.01 Insurance
5.02 Certificates and Policies of Insurance
5.03 Owner's Liability Insurance
5.04 Manager's Responsibilities
Article VI - Compensation of Manager and Management Facilities
6.01 Manager's Fee
Article VII - Termination
7.01 Obligations Upon Termination
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7.02 Remedies
Article VIII - Miscellaneous Provisions
8.01 Headings
8.02 Notice
8.03 Relationship of the Parties
8.04 Entire Agreement
8.05 Assignment
8.06 Legal Representatives, Successors, Transfers and Assigns
8.07 Attorneys' Fees
8.08 Time of the Essence
8.09 Governing Law
8.10 Severability
8.11 No Interest in Condemnation or Insurance Proceeds
8.12 Mutual Waiver
8.13 Owner's Operating Procedures
8.14 Asbestos and Toxic Wastes
8.15 Other Engagements
8.16 Subordination
8.17 Delegation
Signatures
Exhibit "A" - Property Description
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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of February, 1998, by and between CONTINENTAL MORTGAGE AND EQUITY
TRUST, a California Real Estate Investment Trust ("Owner") and CARMEL REALTY
SERVICES, LTD., a Texas partnership (herein called "Manager").
W I T N E S S E T H:
WHEREAS, Owner is the owner of the real property more particularly
described on Exhibit "A", attached hereto and by this reference made a part
hereof (the "Land"); there are certain improvements on the Land, which include,
but are not limited to, that certain property known as "See Exhibit A" (the
"Building");
WHEREAS, the Land, the Building and any parking facility or structure
located on the Land are sometimes collectively referred to herein as the
"Property";
WHEREAS, Owner desires to appoint Manager and Manager desires to accept
the appointment, to supervise the overall management and operation of the
Property, and to engage such entity or entities for the performance of
day-to-day management and operation of the Property as Manager deems necessary
or appropriate; and
WHEREAS, this Agreement is entered into for the purpose of setting
forth the terms on which Manager will manage the Property.
NOW THEREFORE, incorporating the recitals as set forth above, and in
consideration of the mutual covenants herein contained, and Ten and No/100
Dollars ($10.00) and other good and valuable consideration paid by the parties
hereto to one another, the receipt and sufficiency of which are acknowledged,
the parties hereto do covenant and agree as follows:
ARTICLE I
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APPOINTMENT; TERM OF AGREEMENT
1.01 Appointment. Subject to the terms and conditions hereof, Owner
hereby appoints Manager and delegates to Manager the sole and exclusive right to
manage, supervise and operate the Property, and Manager hereby accepts its
appointment.
1.02 Term. This Agreement shall commence on February 1, 1998 (the
"Commencement Date") and continue for a period of one (1) year, unless sooner
terminated as provided herein (a) for "Cause" (as herein defined) or (b) upon
the giving of thirty (30) days written notice by either party to the other of
its intent to terminate this Agreement in its sole discretion without the
necessity of showing Cause. The entire term of this Agreement is sometimes
herein referred to as the "Term".
1.03 Termination For Cause. Owner, at its option, may terminate this
Agreement for "Cause" at any time upon giving written notice thereof and the
term "Cause" shall include (a) fraud, misrepresentation, misappropriation of
funds, furnishing any statement, report, notice, writing, or schedule to Owner
that Manager knows is untrue or misleading in any material respect on the date
as of which the facts set forth therein are stated or certified, or breach of
trust by Manager, or (b) an intentional or grossly negligent or illegal act
committed by Manager against Owner.
ARTICLE II
RESPONSIBILITIES OF MANAGER
2.01 Standard of Care. Manager shall operate, manage and maintain the
Property, for and on behalf of Owner, diligently and in good faith, in
accordance with sound, reasonable and prudent property management practices.
2.02 Operation of Property. Manager shall collect the Gross Monthly
Collections (as defined in Section 6.01 (b) hereof), comply with the provisions
of the manager's policy manual provided by Owner (the "Policy Manual"), and
institute, be responsible for and supervise, at the expense of Owner, all
maintenance and operational activities of the Property, including, but not
limited to, the following:
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(a) providing any necessary repairs to the Property and a
preventative maintenance program for all mechanical, electrical and
plumbing systems and equipment on the Property;
(b) contracting in the name of Owner for gas, electricity, water
and such other utility services to be furnished to the Property as
Manager deems appropriate;
(c) contracting with independent contractors for the performance
of services hereunder; and
(d) any other activity expedient to the operation of the Property.
2.03 Employees.
(a) All matters pertaining to the employment, supervision,
compensation, promotion and discharge of employees who are managing and
operating the Property are the responsibility of Manager, and Manager
shall be in all respects the employer of such employees.
(b) Manager shall fully comply with all applicable laws and
regulations having to do with workers' compensation, social security,
unemployment insurance, hours of labor, wages, working conditions and
other employer-employee related subjects.
(c) In the event that Manager's employees are engaged to work in
connection with other properties than the Property, wages and other
expenses with respect to such work shall be allocated between
properties, which allocations shall be subject to review by Owner.
2.04 Enforcement of Leases.
(a) Manager shall use diligent efforts to enforce the terms of all
tenant leases and to collect all rents (including tenants' obligations
to pay a portion of operating expenses, taxes and common area
maintenance charges) and other charges which may become due at any time
from any tenant or from others for services provided in connection with
or for the use of the Property, or any portion thereof. All monies so
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collected shall be deposited in the "Operating Account" (as that term
is defined in Section 3.01 herein).
(b) Manager shall not terminate any lease, lock out a tenant,
institute any legal proceedings for the collection of rent, or
institute proceedings for recovery of possession, without the prior
written approval of Owner. Manager shall not cause to be incurred any
legal fees or costs in relation to any dispute involving a tenant (or
otherwise), except upon Owner's prior, written approval.
2.05 Compliance with Leases, Laws and Mortgages. Manager shall fulfill
all the obligations of the Owner as landlord under leases pertaining to the
Property which shall, however, be in the name of and executed by Owner as
landlord, and Manager shall have no authority to execute any lease on behalf of
Owner except as specified in writing by Owner. Manager shall operate the
Property in compliance with federal, state and local laws, ordinances,
regulations and orders and the terms of the local Board of Fire Underwriters or
similar body, any space lease, ground lease, and lien or security instrument
affecting or encumbering the Property or Building; and Manager shall immediately
provide Owner with written notice of any violation or default pursuant to any of
the foregoing and shall remedy same. From the Operating Account, Manager shall
make payments due to ground lessors or mortgagees of the Property.
2.06 Notification to Owner. In addition to all other notices provided
for herein, Manager shall, to the extent of its knowledge, promptly notify Owner
of all material adverse matters concerning the Property, including, without
limitation:
(a) all lawsuits, condemnation proceedings, zoning or any other
governmental orders, notices, actions or threats that may adversely
affect the Property;
(b) any major and material claim made by a tenant that Manager or
Owner has failed to perform any obligations of Owner or Manager under
any lease or agreement to which the Manager or Owner is a party;
(c) the occurrence of any fire or other casualty on or about the
Property or any other personal injury or property damage (such notice
to be in compliance with the requirements
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of all insurance policies), and Manager shall permit insurance
adjustors to view damages before repairs are started except for
emergency situations;
(d) any requirement of any insurance carrier or of any
governmental agency with respect to the Property;
(e) any material offers to purchase the Property; and
(f) the actual or suspected presence, use, storage, release,
disposal, or transport of any radioactive, hazardous, regulated, or
toxic substance or material on, about, or from any of the Property, the
presence, use, storage, release, disposal or transport of which either
(i) is prohibited or otherwise regulated by any now or hereafter
existing local, state, or federal statute, ordinance, rule, regulation,
or the like or (ii) poses or may pose a risk to the health, safety or
physical well-being of persons.
2.07 Books and Records. Manager shall maintain separate, complete and
identifiable records and files, in the format required by Owner, on all matters
pertaining to the Property and Building, including, but not limited to, all
revenues and expenditures, service contracts and leases. Said books and records
shall be kept at the offices of Manager in the Building or such other place as
Owner and Manager from time to time agree. Manager shall keep accurate and
complete books and accounts in accordance with tax basis accounting principles,
consistently applied, showing operations and transactions relating to the
Property and showing (provided that Owner furnishes appropriate information to
Manager) the assets, liabilities, and financial condition of the Property.
Manager shall be responsible for developing a comprehensive accounting system
consistent with the aforesaid goals, and for conducting all internal audits at
the Property. Owner's duly authorized representatives shall at all times during
regular business hours have the right to audit said records and books.
2.08 Reports and Reconciliation of Accounts. On or before the
fifteenth (15th) day of each month during the Term or as otherwise directed by
Owner, Manager shall provide to Owner such reports pertaining to the Property as
are required by Owner in the form as specified in the Policy Manual.
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2.09 Contracts.
(a) Unless otherwise requested by Owner, all contracts relating to
the operation of the Property shall be in the name of and executed by
Manager on behalf of Owner, subject, however, to Owner's prior written
approval of the terms and conditions of all such contracts, and all of
such contracts shall be terminable upon the giving of thirty (30) days
written notice.
(b) Manager may not enter into contracts pertaining to the
Property with parties affiliated with, under the common control of or
controlled by Manager unless specifically consented to in writing by
Owner. Unless specifically consented to in writing by Owner, personnel
of Manager may not be used to provide services which could be provided
by outside personnel or agencies (including, but not limited to,
landscaping and HVAC maintenance).
(c) Manager shall use reasonable efforts to require that each
independent contractor indemnify and save harmless Owner and any
partners of Owner and its officers, directors, agents, employees, and
subsidiaries from and against all liability, claims and demands on
account of injury to persons (including death) and damage to property
arising out of or resulting from the willful misconduct or gross
negligence of the independent contractor, or employees or agents of the
independent contractor, in the performance of the contract or work by
the independent contractor, its employees, or agents, or from the
independent contractor's property. Manager shall also use reasonable
efforts to induce the independent contractor and such agents to agree
that such independent contractor and such agents shall, at its expense,
(i) defend any and all suits or actions against Owner or a partner of
Owner and/or Manager brought as a result of any such willful misconduct
or gross negligence, (ii) pay all reasonable attorneys' fees and all
other expenses in connection therewith, and (iii) promptly discharge
any judgments arising therefrom. Before engaging any independent
contractor, Manager shall cause each such independent contractor to
provide Owner with evidence of any insurance Owner, in its reasonable
judgment, deems that such independent contractor should carry.
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2.10 Special Services. Manager shall furnish or cause to be furnished
additional services, including, but not limited to, the build-out or remodeling
of tenant space (collectively the "Special Services") as may be required from
time to time by particular leases pertaining to the Building. Manager shall xxxx
the tenants in question (or Owner, if Owner is to pay such costs pursuant to the
applicable lease) the costs of such Special Services pursuant to their tenant
leases. Manager shall obtain Owner's approval if a change in the nature of such
Special Services results in an increase in the cost of such Special Services in
excess of ten percent (10%) in the aggregate of the cost for such Special
Services as previously approved by Owner.
2.11 Property Taxes. Manager shall promptly send to Owner upon receipt
copies of all notices of assessment or reassessment and tax bills affecting the
Property. Manager shall (i) pay such taxes, (ii) take full advantage of all
discounts available in connection with the payment thereof and (iii) promptly
send to Owner receipted copies of all tax bills, provided that Owner provides
Manager with all funds required to make such payments. Manager shall be
responsible for administering all tax appeals.
2.12 Construction Management. Manager shall advise Owner on
performance of construction, reconstruction and renovation work at the Property
and, at the request of Owner, shall act as construction manager with respect to
such work. Such service shall include, without limitation, coordination with the
Owner and Owner's architect of the planning of all work, obtaining of bids from
trade contractors, administration of all contracts and the performance thereof
by trade contractors and subcontractors and liaison with Owner, Owner's
architect and any tenants for whom work is being performed.
ARTICLE III
BANK ACCOUNTS
3.01 Operating Account. Manager shall deposit all rents and other
funds collected from the operation of the Property, including but not limited to
any and all advance funds in a special account (the "Operating Account") for the
Property in the name of Owner in a federally insured financial institution
designated or approved by Owner. Manager and Owner shall each be authorized
signatories on
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the Operating Account. Out of the Operating Account, Manager shall pay the
operating expenses of the Property and any other payments relative to the
Property as permitted by the terms of this Agreement. The balance in the
Operating Account shall be transferred at such times as may be designated by
Owner to Manager in writing from time to time, to an account of Owner at the
financial institution designated by Owner.
3.02 Security Deposits. Manager shall deposit tenant security deposits
in a special account in the name of Owner in a financial institution designated
by Owner. Manager and Owner shall each be authorized signatories on the account.
Manager shall maintain detailed records of all security deposits, which records
may be inspected by Owner's employees or appointees.
ARTICLE IV
BUDGETS AND EXPENDITURES
4.01 Business Plan. Within twenty (20) days after the Commencement
Date with respect to the first calendar year of the Term, and no later than
October 15th of each year during the Term with respect to any subsequent
calendar years (or at such other date as designated by Owner, but no more
frequently than once during each twelve month period), Manager shall prepare, in
the form specified in the Policy Manual, and submit to Owner for Owner's
approval a Business Plan (following Owner's approval, the "Approved Budgets")
for the management and operation of the Property and Building for the
forthcoming twelve month period which shall include an Operating Budget
(following Owner's approval, the "Approved Operating Budget") and a Capital
Budget (following Owner's approval, the "Approved Capital Budget"). Budget line
items shall include:
(a) costs of the gross salary and compensation, or pro rata share
thereof, including, but not limited to, payroll taxes, insurance,
workers' compensation and other benefits, of any of Manager's staff
whose full-time, on-site duties involve the day to day operation or
management of the Property;
(b) costs necessary for the management, operation, and maintenance
of the Property; and
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(c) any and all capital expenditures authorized by Owner and
directed by Owner to be incurred.
4.02 Expenses Paid from Operating Account. All expenditures
contemplated to be paid from the Operating Account are limited to the extent
that such costs and expenses are authorized by this Agreement and in the
Approved Budgets then in effect.
4.03 Insufficient Income. If at any time the cash in the Operating
Account shall not be sufficient to pay the bills and charges which have been or
may be incurred with respect to the Property and which are payable from the
Operating Account, Manager shall notify Owner immediately upon first projection
or awareness of a cash shortage or pending cash shortage.
4.04 Limitation on Payments. Under no circumstances shall Manager pay
or obligate Owner to pay, or otherwise incur any liability of any kind or nature
for, any cost or expense other than those expressly provided for and authorized
under the Approved Budgets in effect from time to time. Notwithstanding Owner's
approval of the Approved Capital Budget, no expenditure may be made for items
appearing thereon until Owner has authorized such expenditure.
ARTICLE V
INSURANCE AND INDEMNIFICATION
5.01 Insurance. Manager shall recommend to Owner the insurance
coverage it considers appropriate for the Property. Upon approval by Owner,
Manager shall be responsible for the placement of all insurance, adjustment of
any losses covered by such insurance and the institution of appropriate safety
procedures at the Property which will minimize insurance claims to the extent
possible. Throughout the Term, Manager shall maintain in full force and effect
the following kinds of insurance covering its operations on the Property, in
amounts and with coverages satisfactory to Owner, (with the insurance described
in (a) below to be maintained at Owner's expense and the insurance described in
(b), (c), (d) and (e) below to be maintained at Manager's expense):
(a) worker's compensation and employer's liability insurance,
covering only full time, on-site employees at the Property;
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(b) comprehensive general liability insurance, including coverage
for personal injury and coverage concerning the contractual liability
of Manager to Owner described in Section 5.04 herein, with Owner named
as an additional insured;
(c) comprehensive automobile liability insurance, when the
services to be performed require the use of a motor vehicle, with Owner
named as an additional insured;
(d) a fidelity bond, in the name or for the benefit of Owner, in
an amount of not less than $1,000,000.00, the coverage of which shall
include, but not be limited to, Manager and all employees of Manager
who handle any income derived from the Property, with Owner named as
loss payee; and
(e) worker's compensation and employer's liability insurance
covering Manager's employees not included in the insurance described in
(a) above, with Owner named as an additional insured.
5.02 Certificates and Policies of Insurance.
(a) Certificates of the insurance coverages as described above
shall be delivered to Owner on or before the Commencement Date,
evidencing that such insurance is in force, together with copies of the
policies (certified as true, correct, and complete by the insurer) of
insurance to which such certificates refer. Within fifteen (15)
calendar days prior to expiration of any such insurance coverage, new
certificates shall be delivered, certified as aforesaid, evidencing
renewal of such insurance coverage.
(b) All certificates must contain waiver of subrogation clauses
and must provide that if such policies are canceled or changed during
the period of coverage as cited therein in such manner as to affect the
insurance coverage, written notice will be mailed to Owner and Manager
by registered or certified mail delivered at least thirty (30) calendar
days prior to such cancellation or change (and such certificates shall
include no language absolving the issuer thereof from liability for its
failure so to provide such notice).
5.03 Owner's Liability Insurance. Owner agrees to carry comprehensive
general liability insurance and such other insurance
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as Owner may determine to be necessary for the protection of the interests of
Owner and Manager, the carrier and the amount of coverage in each policy to be
decided upon by Owner in Owner's reasonable judgment, or Owner may elect to
self-insure.
5.04 Manager's Responsibilities. Except to the extent Owner is
reimbursed under any insurance policy covering such risks (or would have been
reimbursed by an insurance policy except for the fact that Owner elects to
self-insure against such risks), Manager shall be liable to Owner for, and shall
indemnify and hold harmless Owner from, any and all claims, demands, causes of
action, debts, liabilities, judgments, damages and expense, including, without
limitation, costs and reasonable attorneys' fees in connection with the
enforcement of this indemnity (collectively, the "Claims"), which may be
incurred by or made against Owner arising out of (a) the gross negligence,
willful misconduct, fraud, breach of trust, illegal acts or intentional
misrepresentation of Manager or its employees, or (b) a material breach by
Manager or its employees of an express and clear provision of this Agreement;
provided however, Manager and its employees shall not be liable for, and shall
not be required to indemnify Owner from, any Claims caused by the acts or
omissions by Manager or its employees and reasonably believed in good faith by
the party so acting to be within the scope of the authority granted Manager or
any other party under this Agreement or under any contract or agreement
authorized hereby.
ARTICLE VI
COMPENSATION OF MANAGER
6.01 Management Fee.
(a) Owner agrees to pay Manager, and Manager agrees to accept as
full compensation for the services to be rendered to Owner hereunder
during the Term hereof, a sum (the "Management Fee") equal to five
percent (5%) of the "Gross Monthly Collections" (as defined below) from
the Property when, as, and only to the extent actually collected from
the Property. The Management Fee shall be payable monthly in arrears,
commencing upon the last day of the first month or partial month, as
the case may be, of the Term.
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(b) "Gross Monthly Collections" shall mean the total gross monthly
collections received from the Property as a result of rental of all or
any portion of the Property, excluding, however, security deposits,
payment of money by a tenant or any other person or entity to Owner or
Manager in consideration for or in conjunction with a security deposit,
fire loss proceeds, any Special Services, condemnation proceeds,
proceeds received by Owner in connection with the sale of any portion
of the Property or personal property located upon the Property, and the
refinancing of any indebtedness secured by a lien on any portion of the
Property or otherwise related to the operation of the Property.
ARTICLE VII
TERMINATION
7.01 Obligations Upon Termination. Upon termination for whatever
cause, Manager shall, not later than the effective date of termination of this
Agreement, deliver to Owner the original of all books, permits, plans, records,
leases, licenses, contracts and other documents pertaining to the Property and
their operation, all insurance policies, bills of sale or other documents
evidencing title or rights of Owner, and any and all records or documents,
whether or not enumerated herein, which are necessary or desirable for the
ownership and operation of the Property. Manager shall assign unexpired service
and supply contracts to Owner or parties designated by Owner. All personal
property (including, but not limited to, capital equipment, hardware, trade and
non-trade fixtures, materials and supplies) acquired pursuant to this Agreement,
whether paid for directly by Owner or by way of reimbursement to Manager, shall
become the property of Owner and shall remain at the Property after the
termination of this Agreement in accordance with its terms, unless Owner shall
request Manager to remove said property. The obligations set forth in this
paragraph shall be in addition to any and all other rights, liabilities and
obligations created under this Agreement and as provided by law.
7.02 Remedies. Owner's remedy to terminate this Agreement pursuant to
the terms of this Article VII shall not be exclusive, and in the event of any
default by Manager, the Owner shall be entitled to exercise any and all other
remedies and rights of Owner
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set forth herein or available at law or in equity (unless expressly waived in
writing by the Owner). The sole remedy of Manager in the event of wrongful
termination by Owner shall be to xxx Owner for the loss of its Management Fee
during the applicable period. In no event shall Manager be entitled to the
recovery of special or consequential damages, nor shall Manager be entitled to
hold over at the Property after termination by Owner. Failure of Manager to
comply for any period with the provisions of Section 7.01 shall render Manager
liable to Owner for liquidated damages in the amount of three (3) times the
Management Fee which would have been payable to Manager during such period had
this Agreement not been terminated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 Headings. The headings used herein are for purposes of
convenience only and should not be used in construing the provisions hereof.
8.02 Notice. Any notice, demand or communication required or permitted
hereunder shall be given in writing and shall be deemed received (a) immediately
upon delivery in person; (b) three (3) days after being deposited in the U.S.
mail by certified mail, postage prepaid; or (c) the first business day after
being deposited with a recognized overnight courier service (which courier
services shall include, by way of illustration but not limitation, Federal
Express). Each such notice shall be addressed to the party to receive such
communication at the following address:
If to Owner:
Continental Mortgage and Equity Trust
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
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If to Manager:
Carmel Realty Services, Ltd.
C/o Basic Capital Management, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
or other address as any party may hereafter designate by written notice to the
other parties hereto.
8.03 Relationship of the Parties. As to Owner, Manager is an
independent contractor hired by Owner pursuant to the terms hereof. Nothing
contained in this Agreement, nor any acts of the parties hereto, shall be deemed
or construed by the parties hereto, or either of them, or any third party, to
create the relationship of principal and agent or a partnership or a joint
venture between the parties hereto.
8.04 Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof, and to the extent
inconsistent therewith, supersedes all other prior agreements, representations,
and covenants, oral or written. Amendments to this Agreement must be in writing
and signed by all parties hereto.
8.05 Assignment. Owner shall have the right, at any time and from time
to time, in its sole discretion, to assign its rights and obligations hereunder
to a third party acquiring the Property provided that any such third party
enters into a written agreement assuming Owner's obligations hereunder. Manager
may not assign its rights and obligations hereunder.
8.06 Legal Representatives, Successors, Transfers and Assigns. This
Agreement shall be binding upon and inure to the benefit of Owner and Manager
and their respective legal representatives, successors, transfers and assigns
(but nothing contained herein shall be interpreted to permit any assignment not
otherwise expressly permitted by another provision of this Agreement).
8.07 Attorneys' Fees. In the event of any controversy, claim or action
being filed respecting this Agreement or in connection with the Property, the
prevailing party shall be entitled, in
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addition to all other expenses, costs or damages, to recover its reasonable
attorneys' fees actually incurred, at prevailing hourly rates of the attorney or
law firm in question.
8.08 Time of the Essence. Time is of the essence of this Agreement.
8.09 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED.
8.10 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal for any reason whatsoever,
such provision shall be severed from the Agreement and shall not affect the
validity of the remainder of this Agreement.
8.11 No Interest in Condemnation or Insurance Proceeds. Manager shall
not have any interest in or claim to any condemnation proceeds for the Property
awarded to Owner or any insurance proceeds paid to Owner with respect to any
casualty to the Property; provided, however, that nothing contained herein shall
prevent or be deemed to prevent Manager from pursuing or seeking an award
separate from Owner's award in any condemnation proceeding or a separate claim
under any insurance policy.
8.12 Mutual Waiver. The failure by any party to exercise any right or
power given herein or by law, or to insist upon strict compliance by any other
party with any obligation imposed hereunder, shall in no event constitute a
waiver of such party's right to demand full and complete compliance with each
and every provision hereof or to exercise and enforce all available powers and
remedies.
8.13 Owner's Operating Procedures. Manager shall comply with such
reasonable rules and regulations governing operations of the Property as Owner
shall from time to time establish and make known to Manager.
8.14 Asbestos and Toxic Wastes. Manager shall not cause any toxic
wastes to be placed upon the Property. Manager covenants that it will use
reasonable efforts to prevent the storage, emission or disposal of any
dangerous, toxic or hazardous pollutants of any sort on the Property. Manager
hereby indemnifies
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and holds harmless Owner from and against any loss, cost, damage or liability,
including, but not limited to, court costs and attorneys' fees, in connection
with the occurrence of any environmental hazard on the Property (as listed
above) resulting from its negligence.
8.15 Other Engagements. Owner acknowledges and consents to the fact
that Manager may be engaged in providing to other owners of other buildings in
the area of the Building, the same or similar services which Manager is
providing herein and that such engagement shall not be or be deemed to be a
conflict of interest or a breach of Manager's fiduciary duty to Owner.
8.16 Subordination. Manager shall not have any right or interest in
the Property nor any claim of lien with respect thereto. This Agreement and the
rights of Manager hereunder are and shall be subordinate to any deed to secure
debt, mortgage, deed of trust, security agreement, or other security instrument
now existing or hereafter made encumbering the Property and executed and
delivered by Owner to secure any indebtedness of Owner with respect to the
Property. Manager does hereby agree that this Agreement and all of the rights,
duties, and liabilities of Manager hereunder will be terminated as to the
Property if the holder of any such deed to secure debt, mortgage, deed of trust,
security agreement or other security instrument succeeds to all of the
beneficial right, title, and interest of Owner in and to the Property by virtue
of the appointment of a receiver, foreclosure, acceptance of a deed in lieu of
foreclosure, or otherwise.
8.17 Delegation of Duties. It is specifically agreed that Manager at
Manager's own expense may engage any entity or entities of its choice for the
performance of day-to-day management and operation of the Property as Manager
deems necessary or appropriate; provided, however, that Manager shall be
responsible for continual supervision of any such subagent so as to ensure the
performance of such delegated duties by such subagent in a professional manner
in accordance with this Agreement; and further provided that Manager may not
delegate its responsibilities with respect to (i) developing a comprehensive
accounting system and conducting internal audits under Section 2.07, (ii)
reviewing service contracts under Section 2.09, (iii) administering property
taxes under Section 2.11, (iv) performing construction management services under
Section 2.12 or (v) administering insurance and workplace safety procedures
under Section 5.01.
19
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed and delivered, as of the day and year first above written.
"OWNER"
CONTINENTAL MORTGAGE AND EQUITY TRUST,
a California Real Estate Investment Trust
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Attest: /s/ XXXXXX XXXXXX
---------------------------------
Xxxxxx Xxxxxx
Its: Assistant Secretary
"MANAGER"
CARMEL REALTY SERVICES, LTD., a
Texas partnership
By Its General Partner
BASIC CAPITAL MANAGEMENT, INC.,
a Nevada corporation
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Attest: /s/ XXXXXX XXXXXX
----------------------------------
Xxxxxx Xxxxxx
Its: Assistant Secretary
(CORPORATE SEAL)
20
EXHIBIT "A"
02/01/98
CONTINENTAL MORTGAGE AND EQUITY TRUST COMMERCIAL PROPERTIES
ZIP
NO. PROPERTY TYPE ENTITY METRO AREA (CITY) ST ADDRESS CODE
====================================================================================================================================
0 XXXXX XXXX. XXXXXX XXXX XXX XXXXXXX XX 0000 POYDRAS ST. 70112
2 BROOKFIELD CORPORATE CENTER OFF/IND CMET WASH. D.C. (CHANITLLY) VA 4431 BROOKFIELD CORPORATE DR.
0 XXX XXXXX XXXXXX XXXX XXXXX XX 0000 XXX XXXXX XXXX. 00000
4 0000 XXXXXXXX XXXXXX XXXX XXXXXX XX 3400 CARLISLET ST. 75204
5 CENTRAL FREIGHT IND CMET DALLAS TX 3200 IRVING BLVD. 75247
0 XXXXXX XXXXXX XXXXXX XXXX XXXXXX XX 000 X. XXXXXX XXXXXX 00000
7 INDCON - 0000 XXXXXXXXX XXX XXXX/XXXX XXXXXXX XX 1610 XXXXXXXXX XXXXXX 00000
8 INDCON - 0000 XXXXXXX XXX XXXX/XXXX XXXXXXX XX 4050 GETWELL 38112
9 INDCON - 0000 XXXXX XXXXXX XXX XXXX/XXXX XXX XXXXXXX XX 0000-0000 SPACE CENTER DR 78218
10 INDCON - 0000 XXXXXX XXX XXXX/XXXX XXXXXXX XX 5360 TULANE DRIVE 30093
11 INDCON - 0000 XXXXXX XXX XXXX/XXXX XXXXXXX XX 5700 TULANE DRIVE 30093
00 XXXXX XXXXXXXXXX - 000XX XX XXX XXXX XXXX XXXXX (XXXXX PRAIRIE) TX 0000 000XX XXXXXX 76011
13 XXXXX INDUSTRIAL - 4810-4836 CASH IND CMET DALLAS TX 4810 - 4836 CASH ROAD 75247
14 XXXXX INDUSTRIAL - 4852-4908 CASH IND CMET DALLAS TX 4852 - 4908 CASH ROAD 75247
15 XXXXX INDUSTRIAL - HILLTOP IND CMET DALLAS (RICHARDSON) TX 301 HILLTOP DR. 75081
00 XXXXX XXXXXXXXXX - XXXXXXXX XXX XXXX XXXXXXXXX TX 3011 PINEWOOD DRIVE 76010
00 XXXXX XXXXXXXXXX - XXXXXX XXX XXXX XXXXXX XX 00000 ZODIAC DRIVE 75247
00 XxXXXX XXXXXXXX XXXXXX XXX XXXX XXXXXXX XX 4065 - 4085 X.X. XxXXXX RD. 32811
00 XXXX XXXXXX XXXXXXXX XXXXXX XXXX XXXXXXX XX 1120 NASA ROAD 77058
00 XXXXXXXXX XXXXXXXXXXXX XXXXXX XXX XXXX XXXXXXX (MARIETTA) GA 0000 XXXXXXXX XXXXX 30066
00 XXXXX XXXXXXXXXX XXXX OFF/IND CMET OGDEN UT 2675 INDUSTRIAL PARK DR. 84401
00 XXXXXXXX XXXXXXXXXXXX XXXX. XXXXXX XXXX XXXXXXX XX 6110 PINEMONT DRIVE 77092
21
ZIP
NO. PROPERTY TYPE ENTITY METRO AREA (CITY) ST ADDRESS CODE
====================================================================================================================================
23 PROMENADE S/C RETAIL CMET DENVER CO 0000 XXXXXX XXXX XX. 80126
00 XXX XXXXX X/X XXXXXX XXXX XXXXXXX XX 567 S. CHICKASAW TRAIL 32825
00 XXXXX XXXXX XXX XXXX XXXXXX XX 00000-00 SHADY TRAIL 75220
00 XXXXXXXXXX XXXXXXXX CENTER OFF/IND CMET WASH. D.C. (CHANITLLY) VA 14320-14360 XXXXXXXXXX XXXXXX 00000
00 XXXXXXXXX XXX XXXXX XXXXXX XXXX XXXXXXX XX 0000 XXXXXXXXX XXXXX 75248
22
