1
EXHIBIT 10.22
ASSET MANAGEMENT AGREEMENT
THIS AGREEMENT is made this 26th day of September, 2000
between EBS Building, L.L.C., a Delaware limited liability company ("Owner"),
and HEITMAN CAPITAL MANAGEMENT LLC, an Iowa limited liability company
("Xxxxxxx").
RECITALS
A. Owner owns fee title to that certain parcel of real property
together with the buildings and improvements thereon erected, known generally as
One Financial Plaza and located at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx (the
"Property"). The Property consists of a 12-story office building containing
approximately 500,000 gross and 434,136 rentable square feet, with appurtenant
common areas and parking facilities;
X. Xxxxxxx has expertise, knowledge and experience in providing real
estate asset management services; and
C. Owner desires to engage Xxxxxxx to provide real estate asset
management services with respect to the Property and Xxxxxxx desires to accept
such engagement, all subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS, APPOINTMENT
1.1. DEFINITIONS. The following terms shall have the meanings
hereinafter set forth throughout this Agreement:
"Xxxxxxx" shall have the meaning set forth in the Preface of this
Agreement.
"Xxxxxxx'x Notice Address" shall mean: 000 X. XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, 00000, Attn: Xxxxxx X. Xxxxxxx, or such address as Heitman may notify
Owner from time to time.
"Leasing Agent" shall mean the leasing agent hired by Owner to perform
leasing services in connection with the Property, who shall initially be
Colliers Xxxxxx Xxxxxx Xxxxxx, Inc., or any successor appointed pursuant to the
provisions set forth herein.
"Owner" shall have the meaning set forth in the Preface of this
Agreement.
2
"Owner's Notice Address" shall mean: EBS Building, L.L.C., c/o
PricewaterhouseCoopers LLP, 00 Xxxx Xxxxx - Xxxxx 0000, Xxxxxxx, XX 00000,
Attention: Xxxxx X. Xxxxxx, or such address as Owner may notify Xxxxxxx from
time to time.
"Property" shall have the meaning set forth in the Recitals to this
Agreement.
"Property Manager" shall mean the real property manager hired by Owner
to perform day-to-day management of the Property, who shall initially be
Insignia/ESG, Inc., or any successor appointed pursuant to the provisions set
forth herein.
"Related Party" shall have the meaning set forth in Section 4.3.
1.2. REPRESENTATIONS AND WARRANTIES. Xxxxxxx and Owner each
represent and warrant to the other that (i) it is duly organized, validly
existing, in good standing under the laws of the state of its incorporation or
formation, and (ii) the person signing this Agreement for it is duly authorized
to execute this Agreement on its behalf. Xxxxxxx covenants that: (A) Xxxxxxx
will discharge its duties with reasonable care, skill, prudence and diligence;
and (B) the personnel of Xxxxxxx who will be responsible for carrying out the
terms of this Agreement are individuals experienced in the performance of the
various functions contemplated by this Agreement.
ARTICLE 2
RESPONSIBILITIES OF XXXXXXX
Xxxxxxx shall provide or cause to be provided the following
services with respect to the Property:
2.1. OVERSIGHT OF PROPERTY MANAGEMENT AND LEASING. Owner has
engaged Property Manager to perform day-to-day property management services at
the Property. Xxxxxxx shall reasonably oversee the performance by the Property
Manager of its contractual obligations, including but not limited to review of
service and supply contracts, xxxxxxxx and disbursements, lease enforcement
activities and compliance with applicable laws, and shall immediately report any
deficiencies or problems, with recommendations or plans to remedy any such
deficiencies or problems, to Owner. Owner has engaged Leasing Agent to perform
leasing brokerage services at the Property. Xxxxxxx shall reasonably oversee the
Leasing Agent's leasing activities, including development of marketing
activities, lease negotiation and documentation, the Leasing Agent's financial
analysis of tenants and leases, and the Property Manager's or other parties'
supervision of tenant buildout. Xxxxxxx shall review budgets, reports, plans,
financial statements and other similar materials prepared by the Property
Manager and delivered to Xxxxxxx. Following its review of the annual budget,
Xxxxxxx shall submit the budget to Owner for approval. Following its review of
leases, Xxxxxxx shall submit recommended leases to Owner for approval and for
signature.
2.2. INSPECTION AND LEASING STRATEGY REVIEW. Xxxxxxx shall
inspect the Property on a periodic basis in order to ascertain that the Property
is maintained in an appropriate
3
manner and consistent with Owner's objective to sell the Property. Xxxxxxx shall
review schedules prepared by the Property Manager regarding the payment
performance of tenants, the Property's lease expirations, and market lease terms
quoted by the Leasing Agent and by other competitive properties.
2.3. TAX RETURNS. Xxxxxxx shall cooperate with and provide
such materials as may be available to Xxxxxxx to Owner's attorneys and
accountants for the preparation of tax returns relating to the Property. Xxxxxxx
shall not be required to maintain Owner's tax records or prepare Owner's tax
returns.
2.4. REPAIRS AND CAPITAL IMPROVEMENTS. As reasonably requested
by Owner, Xxxxxxx shall assist Owner in selecting appropriate third-party
service providers to overview major repair and capital improvement programs.
2.5. DISPOSITION, DEVELOPMENT, OR FINANCING OF THE PROPERTY.
Owner shall have full responsibility and authority for deciding whether or not
the Property shall be financed, developed or redeveloped, sold, exchanged, or
disposed of in any other fashion. Xxxxxxx shall advise Owner of its
recommendations for the timing and preferred method of any such action and
consult with Owner concerning the same. If Owner deems any such action to be
advisable after consulting with Xxxxxxx, then Xxxxxxx shall work with Owner in
assisting to effectuate any such transaction. At Owner's request, Xxxxxxx shall
provide its advice as to a strategy for selling the Property, and shall
implement such strategy as may be agreed to by the Owner. Xxxxxxx shall assist
with the sales strategy and provide services which shall include: (i) preparing
and overviewing the preparation of marketing materials; (ii) identifying
prospective buyers; (iii) assisting the Property Manager in providing due
diligence materials to prospective buyers and in providing reasonable access to
prospective buyers (but not in violation of any leases or other agreements
pertaining to this Property) for the limited purpose of inspections; (iv)
assisting Owner in negotiating a letter of intent with Owner-approved
prospective buyers; and (v) assisting Owner's attorneys and other third-party
service providers in the sale of the Property, including involvement in the
negotiation of contracts and the provision of necessary information. Xxxxxxx
shall exercise reasonable care and good faith in the discharge of its duties
hereunder, and shall promote the interests of Owner, including but not limited
to (a) seeking a price and terms and conditions for the sale of the Property
acceptable to Owner, and (b) disclosing to Owner any adverse material
information pertaining to the Property or the offering of the Property for sale
becoming known to Xxxxxxx.
In connection with (and without limiting) Xxxxxxx'x
responsibilities under Section 6.14 hereof, Xxxxxxx understands that the lease
and tenant information, leases, rent rolls, tenant files, budgets, lease
negotiations, marketing materials and other information relating to the Property
(collectively, the "Information") is of a non-public, highly confidential
nature, and Xxxxxxx agrees (a) to hold the Information in strict confidence, (b)
to limit dissemination of the Information to Xxxxxxx'x Parties (as defined
below) under express conditions requiring the maintenance of confidentiality,
and (c) otherwise to disclose the Information to prospective buyers only with
the prior approval of Owner and only to the extent such prospective buyers shall
have signed an acknowledgment of the confidentiality of any offering, agreeing
to hold the disclosed Information in strict confidence.
4
2.6. LEGAL AND ACCOUNTING ADVICE. Throughout the term hereof,
Owner shall retain on its behalf legal counsel and public accountants. At the
reasonable request of Owner, Xxxxxxx shall assist in implementing the
recommendations of such counsel and accountants.
2.7. SELECTION OF THIRD PARTIES. To the extent reasonably
deemed necessary by Xxxxxxx for the proper operation or sale of the Property,
Xxxxxxx shall make appropriate inquiries about, or make recommendations to Owner
with respect to the selection of, and shall supervise and conduct relations
with, third-party service providers. Xxxxxxx shall, upon Owner's reasonable
request, solicit, interview, and give recommendations regarding any successor to
the Property Manager, Leasing Agent and any other agents employed in connection
with the Property. Owner shall have the right to designate any such third party
that it wishes to be hired and shall further have the right to terminate the
employment or to elect not to renew the contract of any such third party. The
cost of the services of such third parties shall be billed directly to and paid
by Owner, unless Owner directs that payment be made from one or more of the
Property accounts. In the event that the services of the Property Manager or any
other employee or agent of Xxxxxxx or Owner is terminated and Owner has not yet
approved a successor, Xxxxxxx may select and engage a temporary successor (which
successor shall not be a Related Party, as defined in Section 4.3), on
commercially reasonable terms and at market rates (provided such engagement must
include a 30 day termination clause for any reason or no reason), until such
time as Owner approves a permanent successor. In the event Xxxxxxx engages such
a successor, it shall notify Owner of the same and forward to Owner a copy of
any information reasonably requested by Owner.
ARTICLE 3
INDEMNIFICATION
3.1. OWNER'S INDEMNITY. Owner shall indemnify and hold
harmless Xxxxxxx and its affiliates, and all of their respective officers,
directors, shareholders, agents and employees (collectively, "Xxxxxxx'x
Parties") from and against any and all liabilities, claims, demands, damages,
reasonable expenses and fees, fines, suits, losses and causes of action
(including the right to separate counsel in the event of litigation) of any and
every kind or nature arising from (i) any action taken, omitted, or suffered by
any of Xxxxxxx'x Parties pursuant to this Agreement, or in accordance with
specific instructions from Owner, (ii) any action taken or omitted by Owner or
Property Manager, (iii) any breach of this Agreement by Owner or (iv) the fraud,
gross negligence or willful misconduct of Owner, other than any liability,
claim, demand, expense, damage, fee, suit, loss or cause of action to the extent
arising from (a) any acts of any of Xxxxxxx'x Parties outside the scope of the
authority granted to Xxxxxxx herein, or any breach of this Agreement by any of
Xxxxxxx'x Parties, or (b) the fraud, gross negligence or willful misconduct of
any of Xxxxxxx'x Parties. Owner shall name Xxxxxxx as an additional insured on
the insurance policy or policies covering the Property, and, except in the event
of an occurrence of the items set forth in clauses (a) and (b) above, Owner
shall pay any deductible on any claim under such policy. In addition, Owner
shall indemnify and hold harmless Xxxxxxx'x Parties from and against any
damages, costs, claims or expenses arising from or in connection with any
salary, pension,
5
workmen's compensation, tax or similar liabilities relating to Owner's Parties'
(as defined below) employees, if any.
3.2. XXXXXXX'X INDEMNITY. Xxxxxxx shall defend, indemnify and
hold harmless Owner, Owner's members and their affiliates, and all of their
respective officers, directors, shareholders, agents and employees
(collectively, "Owner's Parties"), from and against any and all liability,
claims, demands, damages, reasonable expenses, fees, fines, suits, losses and
causes of action (including the right to separate counsel in the event of
litigation) of any and every kind or nature, arising from or in any way
connected with (i) any acts of any of Xxxxxxx'x Parties outside the scope of the
authority granted to Xxxxxxx herein, or any breach of this Agreement by any of
Xxxxxxx'x Parties, or (ii) the fraud, gross negligence or willful misconduct of
any of Xxxxxxx'x Parties, other than any liability, claim, demand, damage,
expense, fee, suit, loss or cause of action to the extent arising from (a) a
breach of this Agreement by Owner or (b) the fraud, gross negligence or willful
misconduct of Owner. In addition, Xxxxxxx shall indemnify and hold harmless
Owner's Parties from and against any damages, costs, claims or expenses arising
from or in connection with any salary, pension, workmen's compensation, tax or
similar liabilities relating to Xxxxxxx'x Parties' employees.
3.3. ADDITIONAL COSTS; SURVIVAL. The indemnification
obligations set forth in this Article 3 shall include the payment of reasonable
attorneys' fees and investigation costs, as well as other reasonable costs and
expenses incurred by the indemnified party in connection with such claim. At the
option of, and upon receipt of notice from the indemnified party, the
indemnifying party shall promptly and diligently defend any such claim, demand,
action or proceeding with counsel reasonably acceptable to the indemnified
party. The provisions of this Article 3 shall survive the termination of this
Agreement.
ARTICLE 4
COMPENSATION FOR ASSET MANAGEMENT SERVICES
Owner agrees to pay to Xxxxxxx and Xxxxxxx agrees to accept,
as full and complete consideration for the asset management undertakings herein
provided or contemplated, the following compensation:
4.1. ASSET MANAGEMENT FEE. With respect to providing the asset
management services contemplated herein, Xxxxxxx shall be entitled to receive a
monthly fee of $20,833.33 which fee shall be payable in arrears and prorated as
applicable at the end of the first and the last month. In addition, in the event
the Property shall be sold prior to the expiration of the term (or earlier
termination) of this Agreement, if Xxxxxxx is the procuring broker of the
purchaser on behalf of Owner, Owner shall pay Xxxxxxx 1.5% of the gross sales
price for the Property (1.25% if a buyer's broker is involved, provided,
however, in no event shall the total commission exceed 2% of the sales price)
plus 5% of that portion of the gross sales price for the Property that exceeds
$45,000,000, such fee to be earned and payable only at the time of the closing
of the sale of the Property, which shall have occurred when title to the
Property (or 100% of the ownership interests in Owner, if the sale of the
Property shall be structured as a transfer of the limited
6
liability company membership interests) has been conveyed to a buyer and Owner
has received compensation therefore.
If Owner has not selected a third party to market the Property for sale, and if
the Property shall not have been sold during the term of this Agreement then
within 15 business days after expiration of the term (or earlier termination
other than for cause as set forth in Section 5.2) of this Agreement, Xxxxxxx may
submit to Owner a written list of any parties to whom Xxxxxxx during the term of
this Agreement has given marketing materials for and with whom Xxxxxxx during
the term of this Agreement has held substantive discussions about the sale of
the Property as contemplated in Section 2.5 of this Agreement and who prior to
the expiration (or earlier termination) of this Agreement have signed and
delivered to Owner a written acknowledgment agreeing to maintain confidentiality
with respect to the Information and discussions concerning the Property. If a
sale contract is entered into by Owner with any party included on the list
within six months following the expiration of the term (or earlier termination
other than for cause as set forth in Section 5.2) of this Agreement, or if prior
to the expiration of the term (or earlier termination other than for cause as
set forth in Section 5.2) of this Agreement a sale contract has been entered
into by Owner with any party but the closing of the sale of the Property under
such sale contract has not occurred as of such expiration (or earlier
termination other than for cause as set forth in Section 5.2) date, then in
either such event if within six months following such expiration (or earlier
termination other than for cause as set forth in Section 5.2) date the closing
of the sale of the Property occurs under such a sale contract, Xxxxxxx shall be
entitled to compensation, calculated as set forth in the immediately preceding
paragraph, upon closing of the sale of the Property to such party under such
sale contract.
Any sale-related compensation computed as set forth above shall be subject to
offset and reduction as provided in the following paragraph and in Section 4.2
of this Agreement.
The parties acknowledge and agree that Xxxxxxx has been reimbursed for
third-party marketing costs incurred in 1999 in the amount of $19,981.75 (the
"Previously Incurred Marketing Costs"). Unless a third party is selected by
Owner to market the Property for sale, future out-of-pocket marketing costs
incurred by Xxxxxxx and approved by Owner in connection with efforts to sell the
property will be reimbursed to Xxxxxxx, provided however, that upon the sale of
the Property any such future costs that are reimbursed, as well as the
Previously Incurred Sale Costs, will be offset against the sale-related
compensation otherwise payable to Xxxxxxx as described above.
If Owner selects a third party to market the Property for sale, Xxxxxxx will
cooperate with such third party, and will provide such third party with such
information as may be requested relating to the Property to facilitate the
marketing effort. Owner and such third party shall agree separately with respect
to compensation for such third party. In the event a sale of the Property occurs
and Owner is obligated to compensate such a third party, then Xxxxxxx shall, at
the time of the closing of such sale, be paid a fee equal to 0.25% of the sale
price of the Property as its sole compensation related to the sale of the
Property.
Notwithstanding any provision of this Agreement to the contrary, in the event of
a sale of the Property to a third party identified by or otherwise introduced to
the Property by a designation member of Owner (as such term is defined in
Owner's organic documents), then Xxxxxxx shall, at
7
the time of such sale, be paid a fee equal to 0.25% of the sale price of the
Property as its sole compensation related to the sale of the Property.
Xxxxxxx shall, concurrently with receipt of (and as a condition to payment of)
any fee related to the sale of the property hereunder, execute an unconditional
lien waiver in substantially the form of Exhibit A attached hereto.
4.2. REIMBURSEMENTS. Owner shall reimburse Xxxxxxx for all
third party costs and expenses incurred with Owner's prior written consent on
behalf of Owner with respect to the Property. Such costs may include payments
for the services of independent appraisers, architects, designers, developers,
engineers, lawyers, contractors and others approved in advance by Owner; title
insurance and abstract work; surveys, surveyor's Certificates and reports;
insurance brokerage services; servicing of mortgage loans as is normally
performed by mortgage bankers and banks; accounting and financial analysis
services in connection with the management of the Property; and audit and
accounting fees of independent certified public accountants. Owner shall also
reimburse reasonable travel and lodging costs incurred by Xxxxxxx in connection
with the performance of its responsibilities hereunder.
4.3. RELATED PARTIES. It is expressly agreed by the parties
hereto that without the prior written consent of Owner in each instance, Xxxxxxx
shall not, in connection with the performance of its duties hereunder, purchase
any supplies, equipment or other items from or contract or make any commitments
with or otherwise employ or deal with any person, firm, company, partnership or
other entity which is controlled by Xxxxxxx or in which Xxxxxxx, Xxxxxxx and its
employees, or any parties controlling Xxxxxxx have a direct or indirect
financial interest or relation (each a "Related Party").
4.4. METHOD OF PAYMENT. The monthly asset management fee set
forth in this Article 4 shall be paid to Xxxxxxx from the Property Manager's
operating account on a monthly basis for so long as this Agreement is in effect
and any sale-related compensation shall be paid from net sale proceeds paid to
Owner in connection with a sale of the Property. Except as set forth in this
Article 4, all office expenses, salaries or any other costs or obligations
incurred by Xxxxxxx in the performance of its duties hereunder shall be borne
solely by Xxxxxxx.
ARTICLE 5
TERMINATION
5.1. PRIMARY TERM AND RENEWALS. This Agreement shall become
effective on the date Owner executes this Agreement and shall continue in full
force and effect until September 25, 2002, and shall thereafter automatically
renew for additional one-year periods, unless otherwise terminated as provided
herein.
5.2. OWNER'S RIGHTS OF TERMINATION. Notwithstanding anything
to the contrary contained in this Agreement, Owner may terminate this Agreement,
(i) without cause upon thirty (30) calendar days' written notice delivered to
Xxxxxxx, (ii) for failure by Xxxxxxx to observe or perform any or all of the
covenants and provisions of this Agreement, upon
8
15 calendar days written notice to Xxxxxxx and the failure to cure such breach
within such 15 day period, and (iii) upon a sale or transfer of the Property or
the beneficial ownership thereof, upon ten (10) calendar days written notice
delivered to Xxxxxxx. The termination of any other agreement between Owner or
any affiliate of Owner and Xxxxxxx for cause shall be deemed "cause" for
termination by Owner of this Agreement. The term "affiliate of Owner" shall
include the designation members of Owner for the purposes of the preceding
sentence. Upon termination, Xxxxxxx shall be entitled to receive its fees
accrued through the effective date of termination (unless Xxxxxxx resigns or is
terminated for cause, in which case Xxxxxxx shall be entitled to receive its
fees accrued through the date of resignation or termination subject to offset
for any damages incurred by Owner as a result of any breach of this Agreement by
Xxxxxxx). In addition, Owner shall be entitled to all damages, relief, rights
and remedies available at law or in equity as a result of a breach of this
Agreement by Xxxxxxx.
5.3. XXXXXXX'X RIGHT OF TERMINATION. Notwithstanding anything
to the contrary contained in this Agreement, Xxxxxxx may terminate, (i) without
cause upon thirty (30) calendar days' written notice delivered to Owner, and
(ii) for failure by Owner to observe or perform any or all of the covenants and
provisions of this Agreement upon fifteen (15) calendar days' written notice
delivered to Owner. Upon termination, Xxxxxxx shall be entitled to receive its
fees accrued through the later of (i) the effective date of termination or (ii)
six months from the date hereof (if this Agreement is terminated by Xxxxxxx due
to cause). In addition, Xxxxxxx shall be entitled to monetary damages, if any,
it incurs as a result of breach of this Agreement by Owners.
5.4. OTHER TERMINATION. In the event a petition for bankruptcy
is filed by or against either Owner or Xxxxxxx, or in the event that either
shall make an assignment for the benefit of creditors or take advantage of any
insolvency act, either party hereto may forthwith terminate this Agreement upon
fifteen (15) calendar days' written notice to the other subject to the last
sentence of Section 5.2 above in the event that such petition is filed against,
or such assignment is made by, Owner.
5.5. CONTINUED RESPONSIBILITY. Following the delivery of any
notice of termination hereunder, Xxxxxxx will perform all of its obligations
hereunder in good faith as directed by Owner and will cooperate fully with Owner
in taking all necessary or appropriate steps in order to effectuate the orderly
transfer of the responsibilities herein. Xxxxxxx shall further deliver to Owner
all property, books, records, and documents of Owner then in the custody of
Xxxxxxx upon Owner's request.
9
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1. NOTICES. Any and all notices required or which either
party herein may desire to give to the other shall be made in writing and shall
be given by certified or registered mail, postage prepaid, return receipt
requested, or by recognized overnight courier, such as Federal Express or
Airborne Express, and shall be deemed to be given on the third business day
following the date of posting in a United States Post Office or branch post
office or one day after delivery to the overnight courier, and shall be
addressed to Owner's Notice Address or Xxxxxxx'x Notice Address. Either party
may, by notice as aforesaid actually received, designate a different address or
addresses for communications intended for it.
6.2. RELATIONSHIP. Notwithstanding anything to the contrary
contained herein, Xxxxxxx shall be an independent contractor performing asset
management functions for Owner but shall, at all times, be subject to the
provisions of this Agreement with respect to managerial decisions. All records
maintained by Xxxxxxx with respect to the operation, leasing or maintenance of
the Property shall, at all times, be and constitute the property of Owner and
shall be surrendered to Owner in accordance with the terms hereof, without
charge or expense. Nothing herein shall create an agency coupled with an
interest.
6.3. OWNER'S AND XXXXXXX'X LIMITED LIABILITY. The liability of
Owner under this Agreement with respect to any fees, and reimbursements, or
otherwise shall be limited to, and recourse of Xxxxxxx and those claiming by,
through or under Xxxxxxx shall be limited to, Owner's interest in the assets
comprising the Property. No individual, officer, director, employee,
shareholder, principal, member, or partner in or of the Owner or Xxxxxxx,
whether direct or indirect, shall be personally liable for the performance of
Owner's or Xxxxxxx'x respective obligations under this Agreement.
6.4. COMPLIANCE WITH EQUAL OPPORTUNITY LAW AND REGULATIONS.
During the term of this Agreement, Xxxxxxx and anyone authorized to act for
Xxxxxxx shall comply with the provisions of Title VIII of the Civil Rights Act
of 1968, as amended, and Executive Order 11063; Titles VI and VIII of the Civil
Rights Act of 1964 and where applicable, Executive Order 11246, as amended, and
all applicable state and local laws. Neither Owner, Xxxxxxx or anyone authorized
to act for such parties shall, in the rental, lease or sale, in the provision of
services or any other manner, discriminate against any person on the grounds of
race, color, creed, religion, sex, national origin, or any other basis
prohibited by law.
6.5. AMENDMENT. This Agreement contains the entire agreement
of the parties and any attempt to change or modify the terms hereof shall be
null and void, unless approved and agreed to in writing by Owner and Xxxxxxx.
All prior agreements and understandings are hereby agreed to be null and void.
6.6. STATE LAW. This Agreement shall be construed, interpreted
and applied in
10
accordance with, and shall be governed by, the laws of the State of Missouri.
6.7. ASSIGNMENT. This Agreement shall not be assignable
without the express written consent of the other party (except for involuntary
assignment by operation of law in connection with any merger, consolidation, or
sale of substantially all the assets of a party).
6.8. CONSTRUCTION. The plural may include the singular and the
singular may include the plural and this Agreement shall be interpreted in this
regard as the context may require.
6.9. HEADINGS. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
6.10. WAIVER. The waiver of any terms and conditions of this
Agreement on any occasion or occasions shall not be deemed as a waiver of such
on any future occasions.
6.11. DIVISIBILITY. In the event any article, section or
paragraph of this Agreement is deemed illegal or unlawful, the same shall be
struck here from and all other articles, sections or paragraphs shall remain
valid and in full effect.
6.12. JURY TRIAL WAIVER. OWNER AND XXXXXXX HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
6.13. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which,
taken together, shall constitute and be taken as one and the same instrument.
6.14. CONFIDENTIALITY. Xxxxxxx shall maintain as confidential
the Information and all communications, studies, analyses, conclusions and
knowledge pertaining to Owner or the Property or derived from the Information
(collectively the "Confidential Materials") including, without limitation,
Owner's financial statements for the Property and other financial information
prepared by or on behalf of Owner, and Xxxxxxx shall not disclose, use or
release such Confidential Materials to any third party except as approved in
advance in each instance by Owner; provided, however, Xxxxxxx may disclose the
Confidential Materials (i) if (but only to the extent) required by law, (ii) to
the manager of Owner pursuant to Section 6.16 hereof, (iii) to Xxxxxxx'x
Parties, and its advisors and consultants to the extent required for Xxxxxxx to
perform its duties hereunder so long as Xxxxxxx'x Parties and its advisors and
consultants similarly agree to maintain such Confidential Materials as
confidential and not to disclose the same, and (iv) to prospective buyers of the
Property to the extent permitted under Section 2.5 hereof. If Xxxxxxx is
requested or required (by interrogatories, subpoena, civil investigative demand
or similar legal process) to disclose any information relative to the Property
or Owner, Xxxxxxx will promptly notify Owner of such request or requirement so
that Owner, at its sole cost and expense, may
11
seek an appropriate protective order or waive in writing the confidentiality
requirements of this Agreement with respect to such request or requirement. If,
in the absence of a protective order or the receipt of a written waiver
hereunder, Xxxxxxx is, in the opinion of Xxxxxxx'x counsel, legally compelled to
disclose any information relating to the Property, Xxxxxxx may disclose such
information to the party compelling such disclosure without liability hereunder.
In no event shall Xxxxxxx be put in a position of violating lawful process or a
court order. These agreements with respect to confidentiality and the
Confidential Materials shall survive the termination of this Agreement, and
shall be enforceable by protective order, specific performance or other
equitable relief (Xxxxxxx acknowledging that any breach of these agreements may
cause immediate and irreparable harm).
6.15. INSURANCE. Xxxxxxx shall maintain, at its sole cost and
expense, workers' compensation and professional liability insurance. To the
extent that either party makes a claim under an insurance policy, the other
party agrees to cooperate and aid in the attempt to obtain the benefits sought
by the party making the claim. Owner shall add Xxxxxxx and affiliates of Xxxxxxx
reasonably designated by Xxxxxxx as an additional insured on all liability
insurance policies relating to the Property held by Owner, and Owner shall, if
it retains possession of any such insurance policy, provide to Xxxxxxx copies of
such insurance policy(ies) upon request
6.16. COMMUNICATIONS; OWNER'S CONSENT OR APPROVAL. All
communications from Xxxxxxx to Owner shall be directed to PricewaterhouseCoopers
LLP, as manager of Owner, or such other recipient as Owner may notify Xxxxxxx in
writing from time to time. In any situation where Owner's consent of approval is
required under this Agreement, such consent or approval shall be provided in the
form of written authorization provided to Xxxxxxx by PricewaterhouseCoopers LLP,
as manager of Owner.
6.17. ATTORNEYS' FEES. In the event any dispute between the
parties hereto should result in litigation, the prevailing party therein shall
be reimbursed for all reasonable costs, including, without limitation,
reasonable attorneys' fees. The prevailing party shall be the party which by law
is entitled to recover its costs of suit, whether or not the action proceeds to
final judgment. If the party which instituted suit shall dismiss it against the
other party without the concurrence of such other party, the non-dismissing
party shall be deemed to be the prevailing party.
6.18. SUCCESSORS. Subject to Section 6.7 above, this Agreement
shall be binding on and shall inure to the benefit of Xxxxxxx and Owner and
their respective successors and assigns.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
XXXXXXX: OWNER:
XXXXXXX CAPITAL MANAGEMENT EBS Building, L.L.C.,
LLC, an Iowa limited liability company a Delaware limited liability company
By: PricewaterhouseCoopers LLP,
By: /s/ Xxxxxx X. Xxxxxxx as Manager
---------------------------
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, Partner
13
EXHIBIT A
UNCONDITIONAL LIEN WAIVER
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this _____ day of __________, 200__, before me personally
appeared the undersigned, ________________________, of Xxxxxxx Capital
Management LLC, an Iowa limited liability company, who, being by me duly sworn
on oath, did hereby certify the following:
1. The undersigned has contracted with EBS BUILDING, L.L.C., a
Delaware limited liability company, to provide certain services (the
"Services"), in connection with the real estate known generally as One Financial
Plaza, and located at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx, as legally
described on the Exhibit attached hereto and incorporated herein by this
reference (the "Real Estate").
2. The undersigned, for itself and on behalf of its shareholders,
directors, officers, partners, employees, successors, assigns and heirs and
personal representatives, for good and valuable consideration, the receipt and
sufficiency of which consideration is hereby acknowledged, hereby
unconditionally and absolutely waives any and all right to any lien or any other
right or claim to the Real Estate and any and all interests therein, whether
having already arisen or to arise in the future.
3. The undersigned represents and warrants that (i) the signator
has full and complete authority to execute this lien waiver and to waive the
rights of the undersigned, and (ii) the entire amount owing to the undersigned
for the Services has been paid to the undersigned in full as of the date hereof.
XXXXXXX CAPITAL MANAGEMENT LLC
By:__________________________________
Title:_________________________________
Printed Name:__________________________
Subscribed and sworn to before me the day and year first above written.
__________________________________________
Notary Public
My Commission Expires:
