EXHIBIT 10.5
LEASING AND TENANT COORDINATING AGREEMENT
BETWEEN THE REGISTRANT
AND XXXXX MANAGEMENT COMPANY, INC.
LEASING AND TENANT COORDINATING AGREEMENT
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THIS AGREEMENT, made as of the 30th day of January, 1998, between XXXXX
REAL ESTATE INVESTMENT TRUST, INC., a Delaware corporation (the "Owner"), and
XXXXX MANAGEMENT COMPANY, INC., a Georgia corporation (the "Agent").
WITNESSETH:
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WHEREAS, the Owner intends to raise money from the sale of the Owner's
stock for the acquisition or construction of income-producing improvements on
several tracts as yet unspecified but to be acquired by Owner; and
WHEREAS, the Owner intends to employ the Agent to manage any leasable
improvements that may be constructed on the Owner; and
WHEREAS, the Owner and Agent are entering into this Agreement to establish
the terms and conditions for such services.
NOW THEREFORE, in consideration of the mutual premises and convenants
herein contained, the Owner and Agent agree as follows:
1. Leasing Agent. The Owner hereby engages the Agent for the term hereof
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as the exclusive leasing and tenant coordinating agent for the commercial
buildings to be developed by the Owner.
2. Effective Date and Terms. This Agreement shall become effective upon
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the date hereof. The initial term of this Agreement shall be for a period of 12
months beginning on the date the Owner notifies the Agent in writing that one or
more Owner are available for lease. The term shall be automatically extended
for an additional one year period at the end of each year unless the Owner or
Agent give sixty (60) days written notice of their intention not to renew this
Agreement. Both the Owner and the Agent may terminate this Agreement at an
earlier date upon sixty (60) days written notice to the other party. The Agent
may engage in preleasing activities as of the date hereof.
3. Leasing Functions. The Agent, by the execution hereof, accepts the
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Owner's engagement of the Agent as the exclusive leasing and tenant coordination
agent of the Owner for the term hereof, and agrees to use its best efforts to
perform the following specific functions:
(a) to seek diligently tenants and obtain signed leases for the Owner
under the terms prescribed by the Owner;
(b) to coordinate the planning of each tenant's space with the
architect and obtain such tenant's approval of the plan;
(c) to coordinate the construction of each tenant's space with the
contractor or the Owner and prepare an accounting of tenant coverage costs (if
any) for such tenant;
(d) to coordinate each tenant's moving into its completed offices; and
(e) not later than 30 days before the anniversary of this Agreement and
extensions thereof, the Agent shall prepare and submit to the Owner for its
approval a marketing and leasing plan for the Owner for the calendar year
immediately following such submission. The leasing plan shall be in the form
approved by the Owner prior to the date thereof. As often as reasonably
necessary during the period covered by any such plan, the Agent may submit to
the Owner for its approval an updated plan incorporating such changes as shall
be necessary to reflect leasing experience during such period. If the Owner does
not disapprove any such plan within 30 days after receipt thereof by the Owner,
such plan shall be deemed approved. If the Owner shall disapprove any such plan,
it shall so notify the Agent within said 30 day period and explain the reasons
therefor.
4. Reimbursement. The Agent shall be reimbursed by the Owner for all
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expenses of the Owner that the Agent incurs in connection with the performance
of its duties and obligations pursuant to this Agreement, provided that such
expenses are expressly authorized by the Owner. Such reimbursements may include
salaries and other employee-related expenses, travel and other out-of-pocket
expenses directly related to a specific Owner to the extent permitted by the
Statement of Policy Regarding Real Estate Investment Trusts by the North
American Securities Administrators Association, Inc., as amended (the "NASAA
Guidelines").
5. Compensation of the Agent.
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5.1. Agent. For performing the functions outlined in Section 3 the
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Agent shall be compensated as follows:
(a) The Agent shall be paid two percent (2%) of the Gross Revenues paid
monthly from rents collected;
(b) In addition to the compensation paid to the Agent under Section
5.1(a) above, the Agent shall be entitled to receive a separate competitive fee
for the one-time initial rent-up or lease-up of a newly constructed property,
provided said fee is not included in the purchase price of the property paid by
the Owner. For this purpose, a total rehabilitation shall be included in the
phrase "newly constructed". The fee paid the Agent under this section is
intended to comply with the applicable provision of the NASAA Guidelines, and in
all instances shall be interpreted in a manner which will comply with said
provision;
(c) The Agent's compensation under Section 5.1(a), but not Section
5.1(b) hereof, shall apply to all renewals, extensions or expansions of leases
which the Agent has originally negotiated; and
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(d) For planning and coordinating the construction of any tenant finish
along with the Owner or any architect, contractor or other authorized person,
the payment for which shall be the responsibility of the tenant, the Agent shall
be entitled to receive from any such tenant an amount equal to 5% of the amount
as remitted by the tenant to the Owner or to a representative of the Owner in
payment for such construction.
As used herein, the term "Gross Revenues" shall mean all amounts actually
collected as rents or other charges for the use and occupancy of Owner, but
shall exclude interests and other investments income of the Owner and proceeds
received by the Owner from a sale, exchange, condemnation, eminent domain
taking, casualty or other disposition of assets of the Owner.
5.2 Co-Brokerage. The Owner agrees that the Agent shall not be required
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to share or co-broker the compensation outlined in Section 5.1(a) and (b) with
another agent. The parties further agree that the amount paid to other real
estate agents for their brokerage services shall reduce, on a dollar by dollar
basis, the amount paid to the Agent under Section 5.1(b) hereof. Any commissions
due other real estate agents for procuring a tenant shall be paid by the Owner.
5.3 Sale of Owner. If the Owner are sold, the Owner agrees to furnish
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the Agent with an agreement signed by the purchaser assuming the Owner's
obligations to pay compensation earned under Section 5.1 of this Agreement.
6. Agent's Limited Liability.
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6.1 Agent's Liability. The Agent's liability is limited in the
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following ways:
(a) The Agent shall not be responsible for acts or omissions of any
contractor, any subcontractor or any of their agents or employees or any other
persons performing any of the work on the Owner which did not result from the
negligence or misconduct of Agent.
(b) The Agent shall not be responsible for errors or omissions of the
architect, his or its engineers, employees or agents or any other independent
engineer, surveyor or other professionals providing services in connection with
the construction of the Owner which did not result from the negligence or
misconduct of Agent.
6.2 Indemnification of Owner. In the performance of its duties
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hereunder, the Agent shall diligently endeavor to protect the property rights
and interests of the Owner as vested in the Owner. The Agent hereby agrees to
indemnify the Owner and hold the Owner harmless from and against any claims,
actions, damages expenses (including, without limitation, attorneys' and
accountants' fees and court costs) and liabilities relating to the negligence or
misconduct of the Agent.
7. Notices. Any notice which may be or is required to be given hereunder
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shall be deemed given when received by personal delivery or by registered or
certified United States mail,
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postage prepaid, return receipt requested, addressed to the Owner and/or the
Agent at the address set forth after their respective name below, or at such
different addresses as either party shall have theretofore advised the other
party in writing in accordance with this Section 7.
Owner: Xxxxx Real Estate Investment Trust, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Agent: Xxxxx Management Company, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
8. Limitation. Except as otherwise specifically provided in this
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Agreement, the Agent shall have not right to incur any liability on behalf of
the Owner or to bind the Owner by an contract or obligation.
9. Activities of Agent. The obligations of the Agent pursuant to the
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terms and provisions of this Agreement shall not be construed to preclude the
Agent from engaging in other activities or business ventures, whether or not
such other activities or ventures are in competition with the Owner or the
business of the Owner.
10. Independent Contractor. The Agent and the Owner shall not be
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construed as joint venturers or Owners of each other pursuant to this Agreement,
and neither shall have the power to bind or obligate the other except as set
forth herein. In all respects the status of the Agent to the Owner under this
Agreement is that of an independent contractor.
11. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia.
12. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
13. Entire Agreement. This Agreement contains the entire understanding
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and all agreements between the parties hereto respecting the leasing and
coordinating of tenant improvements on the Owner. There are no representations,
agreements, arrangements or understandings, oral or written, among the parties
hereto relating to the leasing and tenant coordinating of the improvements on
the Owner which are not fully expressed herein.
14. Section Headings. The section headings in this Agreement are inserted
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only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Agreement or in any way affect this
Agreement.
15. Disputes. If there shall be a dispute among the Agent and the Owner
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relating to this Agreement resulting in litigation, the prevailing party in such
litigation shall be entitled to
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recover from the other party to such litigation such amount as the court shall
fix as reasonably attorney's fees.
16. Binding Agreement. This Agreement shall be binding upon the parties
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hereto and their successors and assigns. This Agreement shall not be changed
orally, but may be changed only by a written agreement signed by the Owner and
the Agent. No waiver or any breach of any covenant, condition or agreement
contained herein shall be construed to be a subsequent waiver of that covenant,
condition or agreement or of any subsequent breach thereof or of this Agreement.
17. Assignment. Agent may delegate partially or in full its duties and
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rights under this Agreement but only with the vote of a majority in interest of
the Limited Owners of the Owner. Except as provided in the immediately
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed as of the day and year first above written.
Xxxxx Real Estate Investment Trust, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Xxxxx Management Company, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
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