EXHIBIT 10.1
MANAGEMENT AGREEMENT
between
CNL INCOME FUND XVIII, LTD.
and
CNL FUND ADVISORS, INC.
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the ``Agreement'') is made and entered into
as of this 12th day of October, 1996, by and between CNL Income Fund XVIII,
Ltd., a Florida limited partnership (the ``Partnership''), and CNL Fund
Advisors, Inc., a Florida corporation (the ``Manager'').
WHEREAS, the Partnership intends to acquire, or enter into co-tenancy
arrangements, 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 meanings. 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 XVIII, Ltd., a
form of which is attached hereto as Exhibit A.
1.1 ``CO-TENANCY ARRANGEMENTS'' means the co-tenancy arrangements
pursuant to which the Partnership becomes a co-tenant or tenant-in-common of
properties which are acquired, in part, by the Partnership and which may
include a written agreement among the tenants.
1.2 ``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.
1.3 ``JOINT VENTURE'' shall mean any joint venture or partnership in
which the Partnership is a co-venturer or partner.
1.4 ``LANDLORD'' shall mean any person or entity designated as the
landlord or lessor under any Lease.
1.5 ``LEASE'' shall mean any lease entered into by the Partnership or a
Joint Venture with a Tenant for the lease of any Property.
1.6 ``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 agreement 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.
1.7 ``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 may perform the following management services
for the Partnership with respect to the Properties:
(a) assisting the Partnership and any Joint Venture or Co-tenancy
Arrangement 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. The Partnership shall, to the extent of available
Net Cash Flow, pay to CNL Fund Advisors, Inc. an annual Management Fee in an
amount equal to one percent (1%) of the sum of the gross revenues derived in
each year from Properties wholly owned by the Partnership, plus, in the case
of Properties owned by any co-tenancy arrangement, joint venture, or
partnership in which the Partnership is a co-tenant, co-venturer, or partner,
a fee in an amount equal to one percent (1%) of the Partnership's allocable
share of such gross operating revenues. The Management Fee shall be payable
monthly on the last day of such month, or the first business day following the
last day of such month. The Management Fee, which shall not exceed fees which
are competitive for similar services in the same geographic area, may be taken
or not, in whole or in part, as to any fiscal year, in the sole discretion of
CNL Fund Advisors, Inc. All or any portion of the Management Fee not taken as
to any fiscal year shall be deferred without interest and may be taken in such
other fiscal year as CNL Fund Advisors, Inc. shall determine.
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.
4.2 TERMINATION. Either party may terminate this Agreement, without
penalty, by giving sixty (60) days' prior written notice to the other party.
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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 funds 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 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 recognize 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.
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 XVIII, Ltd.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
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If to the Manager: CNL Fund Advisors, Inc.
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 all respects in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first-above written.
The Partnership: CNL INCOME FUND XVIII, LTD.
By: /s/Xxxxx X. Xxxxxx, Xx.
XXXXX X. XXXXXX, XX., General Partner
By: /s/Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, General Partner
By: CNL REALTY CORPORATION
General Partner
By: /s/Xxxxx X. Xxxxxx, Xx.
XXXXX X. XXXXXX, XX., President
The Manager: CNL FUND ADVISORS, INC.
By: /s/Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, President
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EXHIBIT A
[Copy of CNL Income Fund XVIII, Ltd. Limited Partnership Agreement.]
EXHIBIT B
[Provide name and address of each Property under management.]
