PROPERTY MANAGEMENT AGREEMENT
[Newport Plaza]
THIS PROPERTY MANAGEMENT AGREEMENT ("Agreement") made as of January ,
2003 by and between NEWPORT PLAZA ASSOCIATES, L.P., a Delaware limited
partnership ("Owner"), and BRENTWAY MANAGEMENT LLC, a New York limited liability
company ("Manager").
BACKGROUND
A. Owner is the owner of the land and improvements known as Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxx (the "Property").
B. Owner desires to retain Manager as Owner's exclusive manager and
broker for the purposes of leasing and managing the Property on behalf of Owner
and Manager is willing to act as Manager for Owner with respect to the Property
on the terms and conditions of the Agreement as more fully set forth herein.
NOW THEREFORE, in consideration of the agreements and covenants herein
contained, and intending to be legally bound hereby, Owner and Manager agree as
follows:
1. Owner hereby employs Manager to manage and lease as the exclusive
broker the Property upon the terms and conditions hereinafter set forth for an
initial term of one (1) year from the date hereof unless otherwise extended,
renewed or terminated as hereinafter set forth.
2. Manager agrees to perform the following:
2.1. Use its best efforts to lease or cause brokers or other
agents to lease on behalf of Owner all available space in the Property;
2.2. Diligently to collect rents, additional rents and all
other sums due from tenants when due and, where necessary or appropriate, and
except as directed otherwise by Owner (in which event Owner shall bear the
administrative costs of relieving Manager of such duty or duties), take all such
actions as Manager shall deem necessary or advisable to enforce all rights and
remedies of Owner under the leases relating to the Property (the "Leases") or to
protect the interest of Owner, including, without limitation, the preparation
and delivery to tenants under the Leases ("Tenants") of all "late payment",
default, and other appropriate notices, requests, bills, demands, and
statements. Manager may retain counsel, collection agencies, and such other
persons and firms as Manager shall deem appropriate or advisable to enforce,
after notification to Owner, by legal action the rights and remedies of Owner
against any Tenant default in the performance of its obligations under a Lease.
Manager shall promptly notify Owner of the progress of any such legal action;
2.3. To pay from the operating funds of the Property or such
other funds as are provided by Owner bills and expenses for the maintenance,
repair and operation of the Property, provided, however, that all expenditures
in excess of $5,000 in any single transaction or more than $50,000 in the
aggregate in any period of twelve (12) consecutive months shall be subject to
Owner's approval unless such expenditure is included in the operating budget for
the Property that has been approved by Owner, and provided further that Manager
shall notify Owner of budget expenditures cumulatively exceeding one hundred ten
percent (110%) of the total expenditures shown on any approved annual budget;
2.4. To establish and maintain such books of account, records,
and other documentation pertaining to the operation and maintenance of the
Property as are customarily maintained by managing Managers of properties
similar in location and size to that of the Property. Manager shall prepare or
cause to be prepared and file all returns and other reports relating to the
Property (other than (a) income tax returns and (b) any reports or returns that
may be required of any foreign owner of U.S. real property) as may be required
by any governmental authority or otherwise under this Agreement. Manager shall
periodically report to Owner on the general operations, occupancy, physical
condition, disbursements, delinquencies, uncollectible accounts, and other
matters relating to the Property. Manager shall prepare and forward to Owner a
written report each month showing the receipts and expenditures for such month,
the receipts and expenditures year-to-date and the variations from the agreed
upon budget. These statements shall, upon Owner's request, be accompanied by
appropriate documentation of all expenditures made by Manager under this
Agreement. As soon as practicable after the end of each calendar year and after
the expiration or termination of this Agreement, Manager shall use reasonable
efforts to prepare and deliver to Owner statements pertaining to the operation
and maintenance of the Property during the preceding calendar year. Manager
shall prepare and submit to Owner for its approval no later than December 1st of
each calendar year (or such later date as the parties agree) a proposed pro
forma budget for all costs pertaining to the operation and maintenance of the
Property during the ensuing calendar year. Each such budget shall be
substantially in the same form as the approved budget in effect for the prior
calendar year, shall set forth expenditures on an annual and a monthly basis,
and shall not, except for informational purposes, include estimates for costs
and expenses for which Owner will be reimbursed by Tenants under the Leases.
Manager shall make such reasonable modifications to each proposed pro forma
budget it prepares in accordance with this section until Owner shall have
approved this budget in writing, which approval shall not be unreasonably
withheld or delayed;
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2.5. To account for all advance deposits of Tenants;
2.6. To refund to Tenants from escrow accounts, funds of the
Property or funds provided by Owner, as appropriate, pro-rated rents, rebates,
allowances, advance deposit refunds, and such other amounts as are legally due
Tenants;
2.7. To collect from Tenants all insurance policies, Tenant
insurance certificates, or other evidence of insurance required to be carried by
Tenants;
2.8. Unless otherwise instructed by Owner, to secure for and
on behalf of and at the expense of Owner such insurance, including without
limitation, employee dishonesty insurance, fire and extended coverage property
insurance, public liability insurance and workers' compensation insurance, as
may be deemed by Owner (or any mortgagees) to be necessary or appropriate, in
amounts satisfactory to Owner and Manager and naming Owner and Manager as
co-insureds and in form and substance satisfactory to Owner, Manager and any
mortgagees; provided, however, that if Manager promptly notifies Owner of the
insurance so secured on behalf of Owner, and promptly complies with Owner's
instructions regarding such insurance, Owner releases and holds Manager harmless
of and from any claims, loss, damages and liability of any nature whatsoever
based upon or in any way relating to Manager's securing or failure to secure any
insurance, or any decision made by Manager with respect to the amount or extent
of coverage thereof or the company or companies issuing, brokering or
negotiating such insurance;
2.9. To respond to complaints and inquiries by Tenants,
prospective tenants and others, and to take such corrective actions as Manager
deems appropriate;
2.10. To contract on behalf of and at the expense of Owner for
such supplies and services in reasonable quantities and at reasonable prices as
may be appropriate with respect to the Property, and to supervise and administer
such contracts, including, without limitation, contracts for mechanical
maintenance (including preventative maintenance), window and facade maintenance
and cleaning, metal maintenance, pest control, trash removal, janitorial and
maintenance supplies, building security, public relations, collection and credit
reporting, legal and accounting services, computer services, architectural and
engineering services, laundry services, and janitorial or cleaning services,
provided Manager shall obtain competitive bids from two non-affiliates for any
contract having a value of $10,000.00 or more;
2.11. Intentionally omitted;
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2.12. Intentionally omitted;
2.13. To supervise and coordinate the moving in and moving out
of Tenants to accomplish efficient and time saving use of personnel and
elevators and maintain appropriate public relations with Tenants and prospective
tenants;
2.14. Manager shall maintain casualty and liability insurance
in the name of the Owner for the Property in amounts reasonably acceptable to
Owner;
2.15. To prepare and file or cause to be prepared and filed on
behalf of Owner such applications for permits, and/or licenses as may be
required for the operation of the Property;
2.16. To prepare and, where appropriate, transmit payroll
records, accounting reports, vacancy and occupancy reports, delinquency reports,
cash flow reports, and disbursement ledgers. Manager may contract with others,
including but not limited to entities or persons affiliated with it, or provide
its own personnel for the performance of accounting, bookkeeping and computer
services in connection with such preparation and transmittal, all without any
additional charge to Owner;
2.17. To institute and prosecute on behalf of Owner such legal
actions or proceedings as the Manager deems appropriate; to collect sums due
Owner; with Owner's approval, to evict a Tenant, former Tenant or occupant of
the Property; to regain possession of the Property or any part thereof; to
contest any xxxx or charge asserted against or with respect to the Property; to
defend any administrative or legal action brought against Manager; to defend any
administrative or legal action brought against Owner with respect to the
Property or the Property with Owner's approval;
2.18. To maintain such bank or similar accounts on behalf of
Owner, and in Owner's name, as are necessary or appropriate in the operation of
the Property, including such reserve, investment, security, escrow and other
accounts, it being understood that all rents and income from the Property shall
be deposited into an account in Owner's name;
2.19. To open and maintain accounts on behalf of Owner with
such suppliers and vendors as are necessary or appropriate for the efficient
operation of the Property;
2.20. Subject to the approval by the Owner, to join and
participate on Owner's behalf in such professional, trade or industry
organizations and associations relating to shopping centers as is necessary or
appropriate with respect to the operation of the Property;
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2.21. To notify Owner of any violations of any laws, orders,
rules, or determinations of any governmental authority or agency affecting the
Property promptly after such occurrence is known to Manager;
2.22. To notify Owner of any catastrophe or major loss or
damage or other material adverse change with respect to the Property, and to
similarly notify all appropriate insurance authorities of the same, promptly
upon Manager's knowledge thereof;
2.23. To supervise and arrange for all construction work
performed on behalf of Owner at, in or about the Property. Manager shall be paid
a construction supervision fee in the amount of five percent (5%) of the total
construction costs or such greater amount as is negotiated and agreed upon by
Manager and Owner;
2.24. Upon request of Owner, to provide or arrange for such
engineering, architectural, design or consulting services with respect to
construction, rehabilitation or decorating work or proposed construction,
rehabilitation or decorating work at the Property, all such services to be paid
for by Owner;
2.25. With Owner's approval, to handle on behalf of Owner the
submission to appropriate insurance officials of insurance claims and, with the
consent of the Owner, the settlement thereof;
2.26. To prepare such reports, data, presentations, market
surveys or other material as Owner requests in connection with the sale,
refinancing, disposition or master leasing of the Property;
2.27. To institute at Owner's expense, advertising, marketing
and public relations campaigns pertaining to the Property;
2.28. To recommend to Owner, where Manager deems it
appropriate, programs for the rehabilitation, remodeling, repairs and marketing
of the Property; and
2.29. To perform such other services on behalf of Owner with
respect to the Property customarily performed by Managers within the Property's
geographical area as shall be reasonably requested from time to time by Owner.
If Owner and Manager disagree as to which services are customarily performed by
Managers as aforesaid, Manager shall not be required to perform such service
until resolution of such dispute, and such non-performance shall not be the
basis of termination by Owner of this Agreement.
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3. Owner expressly withholds from Manager any power or authority to
make any structural changes in any building or to make any other major
alterations or additions in or to any such building or equipment therein, or to
incur any expense chargeable to Owner other than expenses related to exercising
the express powers above vested in Manager without the prior written direction
of Owner (or any party that Owner shall direct), except such emergency repairs
as may be required because of danger to life or property or which are
immediately necessary for the preservation and safety of the Property or the
safety of the occupants thereof or are required to avoid the suspension of any
necessary service to the Property.
3.1. Manager agrees to remit promptly to the account
designated by Owner, all receipts received in the prior calendar month with
respect to the Property in excess of budgeted operating expenses and reserves.
3.2. Manager's duties under this Agreement are limited as
follows:
(i) Manager shall not have any authority to enter
into any leases for or on behalf of the Owner, although the Manager shall be
authorized to negotiate term sheets for leases of space in the Property and
present those term sheets to Owner for Owner's approval. All leases of space in
the Property must be signed by the Owner and must be on a lease form approved by
the Owner.
(ii) Manager shall obtain and present to Owner for
approval and execution by Owner contracts for electricity, gas, fuel, water and
telephone, maintenance services, trash services, and other services as Manager
deems advisable. Manager may enter into contracts on behalf of Owner only after
Owner's written approval thereof provided that Owner's approval is not required
for a contract for a service in which the cost for such service under such
contract does not exceed the cost specified in the Budget. Manager shall not
have authority to enter into any contract for any services whose estimated cost
would exceed the cost specified therefor in the Budget.
(iii) Manager shall give Owner prompt written notice
of any claim which may affect the Property, or of any alleged violations of any
applicable law relating to the Property. Manager may not hire any legal counsel
to defend any such claim against Owner without Owner's prior written consent.
(iv) To the extent that operating revenues of the
Property are available to do so, Manager shall use all reasonable efforts to
cause the Property to be operated in accordance with applicable law and all
insurance requirements; provided, however, that Manager shall not, without the
prior written consent of Owner, make any alterations or repairs, if not included
in the then current budget, except for emergency repairs described in Section 3.
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(v) To the extent that operating revenues of the
Property are available to do so, Manager shall enforce all provisions of all
contracts and leases to which Owner is a party, except that Manager may not
institute any legal action against a vendor or a tenant without the written
approval of the Owner.
(vi) Manager shall establish, maintain and supervise
at the Manager's office such books and records necessary or desirable in order
for Manager to render monthly financial statements to the Owner. Such records
shall be kept for a period of not less than three (3) years and, upon
termination of this Agreement for any reason, Manager shall turn over all of
such books and records to the Owner and be relieved of any obligation to
maintain records thereafter. Owner or any partner of Owner shall have the right
to inspect such records at any time upon 24 hours notice to the Manager.
(vii) If Manager must engage employees to render the
services required by Manager hereunder, all such employees shall be employees of
the Manager, and not employees of the Owner.
4. Owner, and not Manager, shall be responsible for providing the
necessary funds to maintain and operate the Property as efficiently as possible
and in a first class manner in keeping with the standards of operations for
similarly situated shopping centers in the area and Manager's obligations
hereunder are conditioned upon Owner doing so. Owner shall advance such funds to
Manager no later than fifteen (15) days after its receipt from Manager of notice
of the necessity for such advance. Owner agrees to provide any anticipated cash
deficits fifteen (15) days prior to its occurrence. If Owner fails to provide
such funds to Manager, however, Owner shall not be liable in damages or for
specific performance and Manager's remedies for breach by Owner of Owner's
covenants in this Section 4 shall be to terminate this Agreement, in which event
the provisions of Section 10 hereof shall be applicable.
5. Except as otherwise provided for herein, Owner shall pay to Manager
a property management fee in an amount equal to 3% of the gross receipts of the
Property. This fee shall be payable in monthly installments from the operating
accounts maintained pursuant to Section 2.18 hereof. Gross receipts of the
Property shall include all rents, percentage rents, tenant charges,
reimbursements from Tenants for common area maintenance charges, insurance,
utilities and real estate taxes and such other amounts as are collected from
Tenants, but shall exclude the proceeds from any sale or refinancing of the
Property or any portion thereof and the proceeds of any settlements, insurance
award (except for rental loss insurance) or condemnation award. This fee does
not include commissions for leasing services set forth in Section 5.2.
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5.1. To the extent that operating revenues of the Property are
insufficient to pay the management fee in full when due, and to the extent that
Manager agrees in writing in advance to defer receipt by it of any part of the
management fee due it, the amount so deferred shall bear interest at the rate of
two (2) percentage points in excess of the "prime rate" or "base rate" from time
to time announced by Citibank, N.A., New York New York compounded monthly.
Nothing herein contained, however, shall be construed to obligate Manager to
defer receipt by it of any management fee or other fees whatsoever.
5.2. Manager or its affiliate shall be the leasing agent for
the Property. Owner shall pay brokerage commissions as follows:
(a) Subject to the provisions of subsection (e)
hereof, with respect to all leases negotiated with new tenants a commission of
(a) 4% of gross minimum rent (which, as used in this agreement, excludes common
area maintenances, taxes and expense reimbursements payable by a tenant) for
leases of less than 5,000 rentable square feet and (6) 3% of gross minimum rent
for leases of 5,000 or more rentable square feet. One half (1/2) of said
commission shall be paid when the lease has been signed by the Owner and tenant
and the tenant opens for business, and the remainder of the commission shall be
paid upon the later of the date tenant opens for business or the date tenant
pays its first full monthly rent payment.
(b) With respect to any new lease with an existing
tenant, extension of the term of an existing lease (beyond any then existing
lease term, plus renewals) with a then existing tenant, or the exercise by a
tenant of a renewal option, the commission shall be 2% of the gross minimum
rent, but in no event shall the fee be less than $300.00.
(c) No commissions shall be due and payable upon any
sale, refinancing or ground lease of the entire Property except as set forth in
Section 4.8 of the Limited Partnership Agreement of Owner (such fee may be
payable to Manager in lieu of General Partner or another Affiliate (as defined
in the Limited Partnership Agreement of Owner)).
(d) In the event that a tenant vacates the Property
prior to the expiration of its lease, Manager will, subject to the following
conditions in this subsection, reimburse Owner for a pro rata credit for the
unearned portion of the commission, provided that Manager negotiated the
original lease and received a commission. Manager's obligation to return a pro
rata portion of the commission shall be, in the event of a co-broker, only that
share of the commission retained by Manager. Said reimbursement to Owner shall
be due only as a credit against the next commission earned in re-leasing said
vacated space. It shall be the duty of the Manager to renegotiate leases, where
possible, with existing tenants in the Property.
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(e) Manager shall have an exclusive listing of all
rentals in the Property and shall be entitled to a commission in those instances
where another real estate broker represents the tenant or is otherwise
responsible for causing a lease to be executed, it being the responsibility of
the Manager to pay such other broker any commissions due it. In the event that
Manager has to pay an outside broker, the commission payable to Manager shall be
one and one-half times the commission amounts as stated in Section 5.2(a) and
Manager agrees to pay such outside broker a commission of not less than 50% of
Manager's commissions specified in Section 5.2(a) (and if Manager negotiate a
lesser amount, the amount payable to Manager under this subsection 5.2(e) shall
be reduced by the amount of such savings).
(f) Notwithstanding anything to the contrary in this
Section 5, however, no commission shall be payable under any lease for a period
covering more than 15 years. For example, if Owner enters into a 20 year lease
with a tenant, a commission shall be based only on the initial 15 years; or if
the Owner enters into a lease with a tenant providing for one initial 5-year
term and three 5-year renewal terms, commissions shall be based solely on the
initial 5-year term and two of the 5-year renewal terms. However, if all renewal
options in a lease have expired, and the lease is then renewed or a new lease is
entered into with the same tenant, the Manager will be entitled to a commission
thereon pursuant to Section 5.2(b).
6. Owner shall reimburse Manager for reasonable, actual out-of-pocket
expenses including telephone and facsimile charges, postage and express mail
service and travel and food expenses incurred by Manager in connection with
Manager's on site supervision of the Property by Manager's officers and
personnel (evidenced by receipts submitted to Owner).
7. The Manager, on behalf of Owner, shall engage Xxxxxx X. Xxxxxxxx,
Esq., or his successor, as legal counsel to provide legal services for Owner and
the Property. Such services shall be provided as required and at a rate of $200
per hour unless otherwise agreed to by Owner and Manager.
8. In performing its obligations hereunder, Manager shall comply with
all applicable federal, state and local laws and regulations.
9. The initial term of this Agreement shall be for a period of one (1)
year from the date hereof and this Agreement shall automatically renew from year
to year thereafter unless and until terminated by either party upon ninety (90)
days' prior written notice thereof. Notwithstanding the foregoing, Owner shall
be entitled to terminate this Agreement (with no additional compensation) at any
time upon fifteen (15) days' notice to Manager in the event of the malfeasance
or breach of this Agreement by Manager or upon the filing of a bankruptcy
petition against or by Manager. This Agreement shall terminate automatically
(with no additional compensation) if:
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(i) all or substantially all of the Property is
condemned or acquired by eminent domain; or
(ii) all or substantially all of the Property is
destroyed by fire or other casualty as a result of which all or substantially
all of the Tenants are unable to continue the normal conduct of their business
in their respective occupied spaces and are permanently released under their
respective leases from the payment of all rent thereunder; or
(iii) all of the Property is sold to an unrelated,
third-party purchaser.
10. Owner shall pay or reimburse Manager for any monies due it under
this Agreement for services prior to termination, notwithstanding termination of
this Agreement. All provisions of this Agreement that require Owner to have
insured or to defend, reimburse or indemnify Manager shall survive any
termination and, if Manager is or becomes involved in any proceeding or
litigation by reason of having been Owner's Manager, such provisions shall apply
as if this Agreement were still in effect. Owner agrees that Manager may
withhold funds for thirty (30) days after the end of the month in which this
Agreement is terminated to pay bills previously incurred but not yet invoiced,
and to close accounts.
At the expiration or earlier termination of this Agreement, and as a
condition to paying any fees due to the Manager, Manager shall deliver to Owner
all cash and security deposits, if any, previously collected and not properly
expended or otherwise delivered to Owner by Manager for the benefit of Owner;
all originals and executed copies of leases and all related lease files; all
other books and records in the possession of the Manager relating to the
Property; all licenses and permits relating to the Property; and all other
software associated with the foregoing. Manager shall cooperate in good faith to
achieve the orderly transfer of the management responsibilities for the Property
to the new manager designated by Owner.
11. Owner agrees to indemnify, defend, and save the Manager, its
officers and employees harmless from and against all claims, disputes, losses,
liabilities and suits (including but not limited to all attorneys' fees and
litigation expenses and Manager's costs in connection therewith) in any way:
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(i) relating to or arising in connection with the
Property and/or damage to property and injuries to or death of any employee,
invitee or other person whomsoever, and/or Manager's performance of its duties
hereunder;
(ii) relating to any proceeding or suit involving an
alleged violation by Owner of any law applicable to the Property or operations
thereof; and
(iii) relating to obligations assumed by Manager, its
officers or employees in connection with any financing or refinancing entered
into in connection with the Property.
11.1. The obligations of Owner to indemnify, hold
harmless, and reimburse Manager are subject to the following conditions:
(i) Manager shall promptly notify Owner of any matter
with respect to which Owner is required to indemnify, hold harmless, or
reimburse Manager; and
(ii) Manager shall not take or fail to take any
actions, including an admission of liability, which would bar Owner from
enforcing any applicable coverage under policies of insurance held by Owner or
would prejudice any defense of Owner in any appropriate legal proceedings
pertaining to any such matter or otherwise prevent Owner from defending itself
with respect to any such matter, provided such action or failure to act resulted
from the gross negligence or willful malfeasance of Manager.
Notwithstanding the foregoing, Owner shall not be required to
indemnify, hold harmless, or reimburse Manager with respect to any matter (a) to
the extent the same resulted from the gross negligence or willful malfeasance of
Manager or actions taken by Manager outside of the scope of Manager's authority
under this Agreement or any express or implied direction of Owner, (b) which are
covered under workmen's compensation, disability benefits or other insurance, or
(c) to damages or injuries to persons or property caused or occasioned by the
operation of a motor vehicle of any description which are covered by automobile
liability insurance maintained by Manager as required herein (Manager shall be
entitled to indemnification if such damages or injuries are not covered by such
automobile liability insurance provided that such damages or injuries are not
due to actions by Manager outside of the scope of Manager's authority under this
Agreement). Manager agrees to insure itself and its employees, with appropriate
limits of liability, against liability for damages or injuries to persons or
property caused or occasioned by the operation of any motor vehicle, and to
furnish evidence of such insurance to Owner; provided that Manager is entitled
to be reimbursed for the pro rata share of any auto policy apportionable to the
Property.
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The provisions of this section shall survive the expiration or
any termination of this Agreement.
12. Owner and Manager shall each waive any claim for loss or damage
against the other and mutually agree to hold each other harmless for loss to the
Property to the extent that either party is reimbursed or indemnified by
insurance coverage.
13. Manager will promptly notify Owner of any violations of any
requirements of any statute, ordinance, law or regulation of any Governmental
body or any public authority or official thereof having jurisdiction and shall
promptly take all actions necessary to cure such violations and to prevent any
civil or criminal liability from being imposed.
14. In the event it is alleged or charged that the Property or any
equipment therein or any act or failure to act by the Owner or its Managers with
respect to the Property or the sale, rental, or other disposition thereof fails
to comply with, or is in violation of, any of the requirements of any provision,
statute, ordinance, law, or regulation of any governmental body or any order or
ruling of any public authority or official thereof having or claiming to have
jurisdiction thereover, and Manager, in its sole and absolute discretion,
considers that the action or position of Owner may result in damage or liability
to Manager, Manager shall have the right to cancel this Agreement at any time by
giving not less than thirty (30) days' prior written notice to Owner of its
election so to do, which cancellation shall be effective upon the service of
such notice. Such notice may be served personally or by United States certified
mail, and if served by mail shall be deemed to have been served when deposited
in the United States mail system. Such cancellation shall not release the
indemnities of Owner and Manager set forth herein and shall not terminate (i)
any liability or obligation of Owner to Manager for any payment, reimbursement,
or other sum of money then due and payable to Manager hereunder as of the date
of such cancellation, or (ii) any obligation of Manager to remit moneys to Owner
or to complete its obligations hereunder to the date of such cancellation.
Manager shall cooperate with Owner to ensure a smooth and efficient transition
to a new managing Manager, including but not limited to, prompt delivery of
files relating to the Property.
15. Manager agrees to indemnify, defend and save Owner harmless from
and against all claims, disputes, losses, liabilities and suits (including but
not limited to all attorneys' fees and litigation expenses and Owner's costs in
connection therewith) in any way resulting from the gross negligence or willful
malfeasance of Manager, or its employees:
(i) Relating to or arising in connection with the Property
and/or damage to property and injuries to or death of any employee, invitee or
other person whomsoever, and/or Manager's performance of its duties hereunder;
and
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(ii) Relating to any proceeding or suit involving an alleged
violation by Manager of any law applicable to the Property or operations
thereof.
16. Manager shall furnish Owner with evidence that Manager has in
force during the term of this Agreement liability insurance (in amounts not less
than $1,000,000 per occurrence and $3,000,000 in the aggregate) and will
maintain these limits throughout the term of this Agreement.
17. It is expressly agreed by the parties that:
17.1. The parties have entered into this Agreement without any
inducements, representations, statements, warranties or agreements made by
either party other than those expressly stated herein.
17.2. This Agreement embodies the entire understanding of the
parties with respect to the subject matters stated herein and there are no other
understandings or undertakings related to the within subject matters. This
Agreement may be modified only by a written agreement signed by the parties
hereto.
17.3. The provisions of this Agreement are severable and to
the extent that any provision herein is determined by court order, law or rule
to be invalid, such invalidity shall in no way affect nor invalidate the other
provisions of this Agreement.
17.4. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
17.5. With respect to any and all disputes under or relating
to this Agreement, the parties consent to the exclusive jurisdiction and venue
of the Supreme Court of the State of New York, Nassau County and the United
States District Court for the Eastern District of New York and the appellate
courts with supervisory powers thereover.
17.6. The parties agree that in any litigation or proceeding
commenced by either party against the other, service of process shall be deemed
to be effective either by hand delivery thereof or by the mailing thereof via
certified mail, postage prepaid, with a proof of mailing receipt validated by
the U.S. Postal Service constituting the sufficient evidence of service of
process.
17.7. With respect to any notices that are required or
permitted to be made pursuant to this Agreement, they shall be in writing and
either delivered personally or sent by United States mail addressed as follows:
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As to Owner: Newport Plaza Associates, LP
c/o Cedar Bay Realty Advisors, Inc.
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
With a copy to: Kimco Realty Corporation
0000 Xxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxxxxx
As to Manager: Brentway Management LLC
00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
17.8. This Agreement may not be assigned by Manager without
the prior written consent of Owner, provided, however, that Owner consents to
Manager's designating a subsidiary or affiliate of Manager to act on behalf of
Manager as leasing and rental Manager for the Property. This Agreement shall be
binding upon and benefit the parties hereto and their respective successors and
permitted assigns.
17.9. This Agreement shall not be deemed at any time to be an
interest in real estate or a lien of any kind against the Property. The rights
of Manager created hereby shall not run with the land. The rights of Manager
hereunder shall at all times be subject and subordinate to any mortgage
encumbering any or all of the Property and Manager agrees to execute from time
to time documents required by a Mortgagee to confirm the foregoing
subordination.
17.10. Manager's relationship to Owner is strictly and solely
that of an independent contractor. Nothing contained in this Agreement shall be
deemed or construed to create a partnership or joint venture between Manager and
Owner.
17.11. Neither the Owner nor any present or future member,
manager, officer, director, employee, representative or agent of Owner shall
have any personal liability of any kind or nature whatsoever arising under this
agreement, and the liability of the Owner (and any present or future partner of
Owner) for its obligations under this agreement shall be limited solely to
Owner's interest in the Property and Manager shall look solely to the Property
(and the cash flow therefrom) for the enforcement of Manager's rights hereunder.
17.12. This Agreement may not be amended, altered or modified
except by written instruments signed by Owner and Manager and consented to by
Owner's Partners.
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17.13. This Agreement may be executed in one or more
counterparts (and by different parties hereto on different counterparts), each
of which will constitute an original, but all of which when taken together shall
constitute a single contract. A facsimile signature shall for all purposes be
deemed to be an original signature, and either party hereto shall forward to the
other party an original signature if required by the other party.
18. Manager acknowledges that Owner has obtained a loan from
Citizens Bank of Pennsylvania ("Lender") in the principal amount of up to
$5,535,000 (the "Loan"), which is governed by a certain Loan Agreement between
Owner and Lender dated the date hereof. For so long as the Loan is outstanding:
(a) except as otherwise provided in the Loan Agreement, this Agreement
shall be terminable by Lender or its nominee without penalty or
premium following the occurrence of an Event of Default (as such
term is defined in the Loan Agreement) or by Owner after Lender
has notified Owner in writing that Manager is unsatisfactory to
Lender, in each case upon thirty (30) days prior written notice to
Manager;
(b) all payments hereunder shall be subject and subordinate in lien
and priority of payment to the payment of all principal and
interest and all other amounts due under the Loan; and
(c) Manager shall promptly notify Lender with respect to any default
hereunder and promptly deliver to Lender a copy of each notice,
report, plan or statement delivered by Manager to Owner hereunder.
[Remainder of Page Blank; Signatures Follow]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed this Property Management Agreement as of the day and year
first set forth above.
MANAGER
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BRENTWAY MANAGEMENT LLC
By: ______________________________
Xxxxxx X. Xxxxxx
President
OWNER
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NEWPORT PLAZA ASSOCIATES, L.P.
By: CIF-Newport Plaza Associates,
LLC, its general partner
By: Cedar Income Fund Partnership,
L.P., its sole member
By: Cedar Income Fund, Ltd.,
its general partner
By: ____________________________
Xxxxxx X. Xxxxxx
Vice President
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