EXHIBIT 10.7
Residential
MANAGEMENT AGREEMENT
BETWEEN
TRANSCONTINENTAL REALTY INVESTORS, INC.
("OWNER")
AND
CARMEL REALTY SERVICES, LTD.
("AGENT")
DATED AS OF FEBRUARY 1, 1998
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MANAGEMENT AGREEMENT
Recitals
Article I - Appointment; Term of Agreement
1.01 Appointment
1.02 Term
1.03 Termination For Cause
Article II - Responsibilities of Agent
2.01 Standard of Care
2.02 Operation of Property
2.03 Employees
2.04 Enforcement of Leases
2.05 Compliance with Leases, Laws and Mortgages
2.06 Notification to Owner
2.07 Books and Records
2.08 Reports and Reconciliation of Account
2.09 Contracts
2.10 Property Taxes
2.11 Construction Management
Article III - Bank Accounts
3.01 Operating Account
3.02 Security Deposits
Article IV - Budgets and Expenditures
4.01 Business Plan
4.02 Expenses Paid from Operating Account
4.03 Insufficient Income
4.04 Limitation on Payments
Article V - Indemnification and Insurance
5.01 Insurance
5.02 Certificates and Policies of Insurance
5.03 Owner's Liability Insurance
5.04 Agent's Responsibilities
Article VI - Compensation of Agent and Management Facilities
6.01 Agent's Fee
Article VII - Termination
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7.01 Obligations Upon Termination
7.02 Remedies
Article VIII - Miscellaneous Provisions
8.01 Headings
8.02 Notice
8.03 Relationship of the Parties
8.04 Entire Agreement
8.05 Assignment
8.06 Legal Representatives, Successors, Transfers and Assigns
8.07 Attorneys' Fees
8.08 Time of the Essence
8.09 Governing Law
8.10 Severability
8.11 No Interest in Condemnation or Insurance Proceeds
8.12 Mutual Waiver
8.13 Owner's Operating Procedures
8.14 Asbestos and Toxic Wastes
8.15 Other Engagements
8.16 Subordination
8.17 Delegation of Duties
Signatures
Exhibit "A" - Property Description
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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of February, 1998, by and between TRANSCONTINENTAL REALTY
INVESTORS, INC., a Nevada corporation ("Owner") and CARMEL REALTY SERVICES,
LTD., a Texas partnership ("Agent").
W I T N E S S E T H:
WHEREAS, Owner is the owner of the real property more particularly
described on Exhibit "A", attached hereto and by this reference made a part
hereof (the "Land"); there are certain improvements on the Land, which include,
but are not limited to, that certain apartment project known as "See Exhibit A"
(the "Building");
WHEREAS, the Land, the Building and any parking facility or structure
located on the Land are sometimes collectively referred to herein as the
"Property";
WHEREAS, Owner desires to appoint and Agent desires to accept the
appointment, to supervise the overall management and operation of the Property,
and to engage such entity or entities for the performance of day-to-day
management and operation of the Property as Agent deems necessary or
appropriate; and
WHEREAS, this Agreement is entered into for the purpose of setting
forth the terms on which Agent will manage the Property.
NOW THEREFORE, incorporating the recitals as set forth above, and in
consideration of the mutual covenants herein contained, and Ten and No/100
Dollars ($10.00) and other good and valuable consideration paid by the parties
hereto to one another, the receipt and sufficiency of which are acknowledged,
the parties hereto do covenant and agree as follows:
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ARTICLE I
APPOINTMENT; TERM OF AGREEMENT
1.01 Appointment. Subject to the terms and conditions hereof, Owner
hereby appoints Agent and delegates to Agent the sole and exclusive right to
manage, supervise and operate the Property, and Agent hereby accepts its
appointment.
1.02 Term. This Agreement shall commence on February 1, 1998 (the
"Commencement Date") and continue for a period of one (1) year, unless sooner
terminated as provided herein (a) for "Cause" (as herein defined) or (b) upon
the giving of thirty (30) days written notice by either party to the other of
its intent to terminate this Agreement in its sole discretion without the
necessity of showing Cause. The entire term of this Agreement is sometimes
herein referred to as the "Term".
1.03 Termination For Cause. Owner, at its option, may terminate this
Agreement for "Cause" at any time upon giving written notice thereof and the
Term "Cause" shall be limited to (a) fraud, misrepresentation, misappropriation
of funds, furnishing any statement, report, notice, writing, or schedule to
Owner that Agent knows is untrue or misleading in any material respect on the
date as of which the facts set forth therein are stated or certified, or breach
of trust by Agent or (b) an intentional or grossly negligent or illegal act
committed by Agent against Owner.
ARTICLE II
RESPONSIBILITIES OF AGENT
2.01 Standard of Care. Agent shall operate, manage and maintain the
Property, for and on behalf of Owner, diligently and in good faith, in
accordance with sound, reasonable and prudent property management practices.
2.02 Operation of Property. Agent shall collect the Gross Monthly
Collections (as defined in Section 6.01(b) hereof), comply with the provisions
of the manager's policy manual provided by Owner (the "Policy Manual"), and
institute, be responsible for and
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supervise, at the expense of Owner, all maintenance and operational activities
of the Property, including, but not limited to, the following:
(a) providing any necessary repairs to the Property and a preventative
maintenance program for all mechanical, electrical and plumbing systems and
equipment on the Property;
(b) contracting in the name of Owner for gas, electricity, water and
such other utility services to be furnished to the Property as Agent deems
appropriate;
(c) contracting with independent contractors for the performance of
services hereunder; and
(d) any other activity expedient to the operation of the Property.
2.03 Employees. (a) All matters pertaining to the employment,
supervision, compensation, promotion and discharge of employees who are managing
and operating the Property are the responsibility of Agent, and Agent shall be
in all respects the employer of such employees.
(b) Agent shall fully comply with all applicable laws and regulations
having to do with workers' compensation, social security, unemployment
insurance, hours of labor, wages, working conditions and other employer-employee
related subjects.
(c) In the event that Agent's employees are engaged to work in
connection with other properties than the Property, wages and other expenses
with respect to such work shall be allocated between properties, which
allocations shall be subject to review by Owner.
2.04 Enforcement of Leases. Agent shall use diligent efforts to enforce
the terms of all tenant leases and to collect all rents (including tenants'
obligations to pay a portion of operating expenses, taxes and common area
maintenance charges) and other charges which may become due at any time from any
tenant or from others for services provided in connection with or for the use of
the Property, or any portion thereof. All monies so collected shall be deposited
in the "Operating Account" (as that term is defined in Section 3.01 herein).
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2.05 Compliance with Leases, Laws and Mortgages. Agent shall fulfill
all the obligations of the Owner as landlord under leases pertaining to the
Property which shall, however, be in the name of and executed by Owner as
landlord. Agent shall operate the Property in compliance with federal, state and
local laws, ordinances, regulations and orders and the terms of the local Board
of Fire Underwriters or similar body, any space lease, ground lease, and lien or
security instrument affecting or encumbering the Property or Building; and Agent
shall immediately provide Owner with written notice of any violation or default
pursuant to any of the foregoing and shall remedy same. From the Operating
Account, Agent shall make payments due to ground lessors or mortgagees of the
Property.
2.06 Notification to Owner. In addition to all other notices provided
for herein, Agent shall, to the extent of its knowledge, promptly notify Owner
of all material adverse matters concerning the Property, including, without
limitation:
(a) all lawsuits, condemnation proceedings, zoning or any other
governmental orders, notices, actions or threats that may adversely affect the
Property;
(b) any major and material claim made by a tenant that Agent or Owner
has failed to perform any obligations of Owner or Agent under any lease or
agreement to which the Agent or Owner is a party;
(c) the occurrence of any fire or other casualty on or about the
Property or any other personal injury or property damage (such notice to be in
compliance with the requirements of all insurance policies), and Agent shall
permit insurance adjustors to view damages before repairs are started except for
emergency situations;
(d) any requirement of any insurance carrier or of any governmental
agency with respect to the Property;
(e) any material offers to purchase the Property; and
(f) the actual or suspected presence, use, storage, release, disposal,
or transport of any radioactive, hazardous, regulated, or toxic substance or
material on, about, or from any of the Property, the presence, use, storage,
release, disposal or transport of which
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either (i) is prohibited or otherwise regulated by any now or hereafter existing
local, state, or federal statute, ordinance, rule, regulation, or the like or
(ii) poses or may pose a risk to the health, safety or physical well-being of
persons.
2.07 Books and Records. Agent shall maintain separate, complete and
identifiable records and files, in the format required by Owner, on all matters
pertaining to the Property and Building, including, but not limited to, all
revenues and expenditures, service contracts and leases. Said books and records
shall be kept at the offices of Agent in the Building or such other place as
Owner and Agent from time to time agree. Agent shall keep accurate and complete
books and accounts in accordance with tax basis accounting principles,
consistently applied, showing operations and transactions relating to the
Property and showing (provided that Owner furnishes appropriate information to
Agent) the assets, liabilities, and financial condition of the Property. Agent
shall be responsible for developing a comprehensive accounting system consistent
with the aforesaid goals, and for conducting all internal audits at the
Property. Owner's duly authorized representatives shall at all times during
regular business hours have the right to audit said records and books.
2.08 Reports and Reconciliation of Accounts. On or before the tenth
(10th) day of each month during the Term or as otherwise directed by Owner,
Agent shall provide to Owner such reports pertaining to the Property as are
required by Owner in the form as specified in the Policy Manual.
2.09 Contracts. (a) Unless otherwise requested by Owner, all contracts
relating to the operation of the Property shall be in the name of and executed
by Agent on behalf of Owner, subject, however, to Owner's prior written approval
of the terms and conditions of all such contracts, and all of such contracts
shall be terminable upon the giving of thirty (30) days written notice.
(b) Agent may not enter into contracts pertaining to the Property with
parties affiliated with, under the common control of or controlled by Agent
unless specifically consented to in writing by Owner. Unless specifically
consented to in writing by Owner, personnel of Agent may not be used to provide
services which could be provided by outside personnel or agencies (including,
but not limited to, landscaping and HVAC maintenance).
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(c) Agent shall use reasonable efforts to require that each independent
contractor indemnify and save harmless Owner and any partners of Owner and its
officers, directors, agents, employees, and subsidiaries from and against all
liability, claims and demands on account of injury to persons (including death)
and damage to property arising out of or resulting from the willful misconduct
or gross negligence of the independent contractor, or employees or agents of the
independent contractor, in the performance of the contract or work by the
independent contractor, its employees, or agents, or from the independent
contractor's property. Agent shall also use reasonable efforts to induce the
independent contractor and such agents to agree that such independent contractor
and such agents shall, at its expense, (i) defend any and all suits or actions
against Owner or a partner of Owner and/or Agent brought as a result of any such
willful misconduct or gross negligence, (ii) pay all reasonable attorneys' fees
and all other expenses in connection therewith, and (iii) promptly discharge any
judgments arising therefrom. Before engaging any independent contractor, Agent
shall cause each such independent contractor to provide Owner with evidence of
any insurance Owner, in its reasonable judgment, deems that such independent
contractor should carry.
(d) Agent shall be specifically responsible for the periodic review of
all laundry, cable television and similar service contracts which may be in
effect at the Property.
2.10 Property Taxes. Agent shall promptly send to Owner upon receipt
copies of all notices of assessment or reassessment and tax bills affecting the
Property. Agent shall (i) pay such taxes, (ii) take full advantage of all
discounts available in connection with the payment thereof and (iii) promptly
send to Owner receipted copies of all tax bills, provided that Owner provides
Agent with all funds required to make such payments. Agent shall be responsible
for administering all tax appeals.
2.11 Construction Management. Agent shall advise Owner on performance
of construction, reconstruction and renovation work at the Property and, at the
request of Owner, shall act as construction manager with respect to such work.
Such service shall include, without limitation, coordination with the Owner and
Owner's architect of the planning of all work, obtaining of bids from trade
contractors, administration of all contracts and the performance thereof by
trade contractors and subcontractors and
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liaison with Owner, Owner's architect and any tenants for whom work is being
performed.
ARTICLE III
BANK ACCOUNTS
3.01 Operating Account. Agent shall deposit all rents and other funds
collected from the operation of the Property, including but not limited to any
and all advance funds in a special account (the "Operating Account") for the
Property in the name of Owner in a federally insured financial institution
designated or approved by Owner. Agent and Owner shall each be authorized
signatories on the Operating Account. Out of the Operating Account, Agent shall
pay the operating expenses of the Property and any other payments relative to
the Property as permitted by the terms of this Agreement. The balance in the
Operating Account shall be transferred at such times as may be designated by
Owner to Agent in writing from time to time, to an account of Owner at the
financial institution designated by Owner.
3.02 Security Deposits. Agent shall deposit tenant security deposits in
a special account in the name of Owner in a financial institution designated by
Owner. Agent and Owner shall each be authorized signatories on the account.
Agent shall maintain detailed records of all security deposits, which records
may be inspected by Owner's employees or appointees.
ARTICLE IV
BUDGETS AND EXPENDITURES
4.01 Business Plan. Within twenty (20) days after the Commencement Date
with respect to the first calendar year of the Term, and no later than October
15th of each year during the Term with respect to any subsequent calendar years
(or at such other date as designated by Owner, but no more frequently than once
during each twelve month period), Agent shall prepare, in the form specified in
the Policy Manual, and submit to Owner for Owner's approval a Business Plan
(following Owner's approval, the "Approved Budgets") for the management and
operation of the Property and
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Building for the forthcoming twelve month period which shall include an
Operating Budget (following Owner's approval, the "Approved Operating Budget")
and a Capital Budget (following Owner's approval, the "Approved Capital
Budget"). Budget line items shall include:
(a) costs of the gross salary and compensation, or pro rata share
thereof, including, but not limited to, payroll taxes, insurance, workers'
compensation and other benefits, of any of Agent's staff whose full-time,
on-site duties involve the day to day operation or management of the Property;
(b) costs necessary for the management, operation, and maintenance of
the Property; and
(c) any and all capital expenditures authorized by Owner and directed
by Owner to be incurred.
4.02 Expenses Paid from Operating Account. All expenditures
contemplated to be paid from the Operating Account are limited to the extent
that such costs and expenses are authorized by this Agreement and in the
Approved Budgets then in effect.
4.03 Insufficient Income. If at any time the cash in the Operating
Account shall not be sufficient to pay the bills and charges which have been or
may be incurred with respect to the Property and which are payable from the
Operating Account, Agent shall notify Owner immediately upon first projection or
awareness of a cash shortage or pending cash shortage.
4.04 Limitation on Payments. Under no circumstances shall Agent pay or
obligate Owner to pay, or otherwise incur any liability of any kind or nature
for, any cost or expense other than those expressly provided for and authorized
under the Approved Budgets in effect from time to time. Notwithstanding Owner's
approval of the Approved Capital Budget, no expenditure may be made for items
appearing thereon until Owner has authorized such expenditure.
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ARTICLE V
INSURANCE AND INDEMNIFICATION
5.01 Insurance. Agent shall recommend to the Owner the insurance
coverage it considers appropriate for the Property. Upon approval by Owner,
Agent shall be responsible for the placement of all insurance, adjustment of any
losses covered by such insurance and the institution of appropriate safety
procedures at the Property which will minimize insurance claims to the extent
possible. Throughout the Term, Agent shall maintain in full force and effect the
following kinds of insurance covering its operations on the Property, in amounts
and with coverages satisfactory to Owner, (with the insurance described in (a)
below to be maintained at Owner's expense and the insurance described in (b),
(c), (d) and (e) below to be maintained at Agent's expense):
(a) worker's compensation and employer's liability insurance, covering
only full time, on-site employees at the Property;
(b) comprehensive general liability insurance, including coverage for
personal injury and coverage concerning the contractual liability of Agent to
Owner described in Section 5.04 herein, with Owner named as an additional
insured;
(c) comprehensive automobile liability insurance, when the services to
be performed require the use of a motor vehicle, with Owner named as an
additional insured;
(d) a fidelity bond, in the name or for the benefit of Owner, in an
amount of not less than $1,000,000.00, the coverage of which shall include, but
not be limited to, Agent and all employees of Agent who handle any income
derived from the Property, with Owner named as loss payee; and
(e) worker's compensation and employer's liability insurance covering
Agent's employees not included in the insurance described in (a) above, with
Owner named as an additional insured.
5.02 Certificates and Policies of Insurance. (a) Certificates of the
insurance coverages as described above shall be delivered to Owner on or before
the Commencement Date, evidencing that such insurance is in force, together with
copies of the
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policies (certified as true, correct, and complete by the insurer) of insurance
to which such certificates refer. Within fifteen (15) calendar days prior to
expiration of any such insurance coverage, new certificates shall be delivered,
certified as aforesaid, evidencing renewal of such insurance coverage.
(b) All certificates must contain waiver of subrogation clauses and
must provide that if such policies are canceled or changed during the period of
coverage as cited therein in such manner as to affect the insurance coverage,
written notice will be mailed to Owner and Agent by registered or certified mail
delivered at least thirty (30) calendar days prior to such cancellation or
change (and such certificates shall include no language absolving the issuer
thereof from liability for its failure so to provide such notice).
5.03 Owner's Liability Insurance. Owner agrees to carry comprehensive
general liability insurance and such other insurance as Owner may determine to
be necessary for the protection of the interests of Owner and Agent, the carrier
and the amount of coverage in each policy to be decided upon by Owner in Owner's
reasonable judgment, or Owner may elect to self-insure.
5.04 Agent's Responsibilities. Except to the extent Owner is reimbursed
under any insurance policy covering such risks (or would have been reimbursed by
an insurance policy except for the fact that Owner elects to self-insure against
such risks), Agent shall be liable to Owner for, and shall indemnify and hold
harmless Owner from, any and all claims, demands, causes of action, debts,
liabilities, judgments, damages and expense, including, without limitation,
costs and reasonable attorneys' fees in connection with the enforcement of this
indemnity (collectively, the "Claims"), which may be incurred by or made against
Owner arising out of (a) the gross negligence, willful misconduct, fraud, breach
of trust, illegal acts or intentional misrepresentation of Agent or its
employees, or (b) a material breach by Agent or its employees of an express and
clear provision of this Agreement; provided however, Agent and its employees
shall not be liable for, and shall not be required to indemnify Owner from, any
Claims caused by the acts or omissions by Agent or its employees and reasonably
believed in good faith by the party so acting to be within the scope of the
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authority granted Agent or any other party under this Agreement or under any
contract or agreement authorized hereby.
ARTICLE VI
COMPENSATION OF AGENT
6.01 Management Fee. (a) Owner agrees to pay Agent, and Agent agrees to
accept as full compensation for the services to be rendered to Owner hereunder
during the Term hereof, a sum (the "Management Fee") equal to five percent (5%)
of the "Gross Monthly Collections" (as defined below) from the Property when,
as, and only to the extent actually collected from the Property. The Management
Fee shall be payable monthly in arrears, commencing upon the last day of the
first month or partial month, as the case may be, of the Term.
(b) "Gross Monthly Collections" shall mean the total gross monthly
collections received from the Property as a result of rental of all or any
portion of the Property, excluding, however, security deposits, payment of money
by a tenant or any other person or entity to Owner or Agent in consideration for
or in conjunction with a security deposit, fire loss proceeds, condemnation
proceeds, proceeds received by Owner in connection with the sale of any portion
of the Property or personal property located upon the Property, and the
refinancing of any indebtedness secured by a lien on any portion of the Property
or otherwise related to the operation of the Property.
ARTICLE VII
TERMINATION
7.01 Obligations Upon Termination. Upon termination for whatever cause,
Agent shall, not later than the effective date of termination of this Agreement,
deliver to Owner the original of all books, permits, plans, records, leases,
licenses, contracts and other documents pertaining to the Property and their
operation, all insurance policies, bills of sale or other documents evidencing
title or rights of Owner, and any and all records or documents,
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whether or not enumerated herein, which are necessary or desirable for the
ownership and operation of the Property. Agent shall assign unexpired service
and supply contracts to Owner or parties designated by Owner. All personal
property (including, but not limited to, capital equipment, hardware, trade and
non-trade fixtures, materials and supplies) acquired pursuant to this Agreement,
whether paid for directly by Owner or by way of reimbursement to Agent, shall
become the property of Owner and shall remain at the Property after the
termination of this Agreement in accordance with its terms, unless Owner shall
request Agent to remove said property. The obligations set forth in this
paragraph shall be in addition to any and all other rights, liabilities and
obligations created under this Agreement and as provided by law.
7.02 Remedies. Owner's remedy to terminate this Agreement pursuant to
the terms of this Article VII shall not be exclusive, and in the event of any
default by Agent, the Owner shall be entitled to exercise any and all other
remedies and rights of Owner set forth herein or available at law or in equity
(unless expressly waived in writing by the Owner). The sole remedy of Agent in
the event of wrongful termination by Owner shall be to xxx Owner for the loss of
its Management Fee during the applicable period. In no event shall Agent be
entitled to the recovery of special or consequential damages, nor shall Agent be
entitled to hold over at the Property after termination by Owner. Failure of
Agent to comply for any period with the provisions of Section 7.01 shall render
Agent liable to Owner for liquidated damages in the amount of three (3) times
the Management Fee which would have been payable to Agent during such period had
this Agreement not been terminated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 Headings. The headings used herein are for purposes of convenience
only and should not be used in construing the provisions hereof.
8.02 Notice. Any notice, demand or communication required or permitted
hereunder shall be given in writing and shall be deemed received (a) immediately
upon delivery in person; (b) three (3)
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days after being deposited in the U.S. mail by certified mail, postage prepaid;
or (c) the first business day after being deposited with a recognized overnight
courier service (which courier services shall include, by way of illustration
but not limitation, Federal Express). Each such notice shall be addressed to the
party to receive such communication at the following address:
If to Owner:
Transcontinental Realty Investors, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
If to Agent:
Carmel Realty Services, Ltd.
c/o Basic Capital Management, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
or other address as any party may hereafter designate by written notice to the
other parties hereto.
8.03 Relationship of the Parties. Agent is an independent contractor
hired by Owner pursuant to the terms hereof. Nothing contained in this
Agreement, nor any acts of the parties hereto, shall be deemed or construed by
the parties hereto, or either of them, or any third party, to create the
relationship of principal and agent or a partnership or a joint venture between
the parties hereto.
8.04 Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof, and to the extent
inconsistent therewith, supersedes all other prior agreements, representations,
and covenants, oral or written. Amendments to this Agreement must be in writing
and signed by all parties hereto.
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8.05 Assignment. Owner shall have the right, at any time and from time
to time, in its sole discretion, to assign its rights and obligations hereunder
to a third party acquiring the Property provided that any such third party
enters into a written agreement assuming Owner's obligations hereunder. Agent
may not assign its rights and obligations hereunder.
8.06 Legal Representatives, Successors, Transfers and Assigns. This
Agreement shall be binding upon and inure to the benefit of Owner and Agent and
their respective legal representatives, successors, transfers and assigns (but
nothing contained herein shall be interpreted to permit any assignment not
otherwise expressly permitted by another provision of this Agreement).
8.07 Attorneys' Fees. In the event of any controversy, claim or action
being filed respecting this Agreement or in connection with the Property, the
prevailing party shall be entitled, in addition to all other expenses, costs or
damages, to recover its reasonable attorneys' fees actually incurred, at
prevailing hourly rates of the attorney or law firm in question.
8.08 Time of the Essence. Time is of the essence of this Agreement.
8.09 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED.
8.10 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal for any reason whatsoever,
such provision shall be severed from the Agreement and shall not affect the
validity of the remainder of this Agreement.
8.11 No Interest in Condemnation or Insurance Proceeds. Agent shall not
have any interest in or claim to any condemnation proceeds for the Property
awarded to Owner or any insurance proceeds paid to Owner with respect to any
casualty to the Property; provided, however, that nothing contained herein shall
prevent or be deemed to prevent Agent from pursuing or seeking an award separate
from Owner's award in any condemnation proceeding or separate claim under any
insurance policy.
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8.12 Mutual Waiver. The failure by any party to exercise any right or
power given herein or by law, or to insist upon strict compliance by any other
party with any obligation imposed hereunder, shall in no event constitute a
waiver of such party's right to demand full and complete compliance with each
and every provision hereof or to exercise and enforce all available powers and
remedies.
8.13 Owner's Operating Procedures. Agent shall comply with such
reasonable rules and regulations governing operations of the Property as Owner
shall from time to time establish and make known to Agent.
8.14 Asbestos and Toxic Wastes. Agent shall not cause any toxic wastes
to be placed upon the Property. Agent covenants that it will use reasonable
efforts to prevent the storage, emission or disposal of any dangerous, toxic or
hazardous pollutants of any sort on the Property. Agent hereby indemnifies and
holds harmless Owner from and against any loss, cost, damage or liability,
including, but not limited to, court costs and attorneys' fees, in connection
with the occurrence of any environmental hazard on the Property (as listed
above) resulting from its negligence.
8.15 Other Engagements. Owner acknowledges and consents to the fact
that Agent may be engaged in providing to other owners of other buildings in the
area of the Building, the same or similar services which Agent is providing
herein and that such engagement shall not be or be deemed to be a conflict of
interest or a breach of Agent's fiduciary duty to Owner.
8.16 Subordination. Agent shall not have any right or interest in the
Property nor any claim of lien with respect thereto. This Agreement and the
rights of Agent hereunder are and shall be subordinate to any deed to secure
debt, mortgage, deed of trust, security agreement, or other security instrument
now existing or hereafter made encumbering the Property and executed and
delivered by Owner to secure any indebtedness of Owner with respect to the
Property. Agent does hereby agree that this Agreement and all of the rights,
duties, and liabilities of Agent hereunder will be terminated as to the Property
if the holder of any such deed to secure debt, mortgage, deed of trust, security
agreement or other security instrument succeeds to all of the beneficial right,
title, and interest of Owner in and to the
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Property by virtue of the appointment of a receiver, foreclosure, acceptance of
a deed in lieu of foreclosure, or otherwise.
8.17 Delegation of Duties: It is specifically agreed that Agent at
Agent's own expense may engage any entity or entities of its choice for the
performance of day-to-day management and operation of the Property as Agent
deems necessary or appropriate; provided, however, that Agent shall be
responsible for continual supervision of any such subagent so as to ensure the
performance of such delegated duties by such subagent in a professional manner
in accordance with this Agreement; and further provided that Agent may not
delegate its responsibilities with respect to (i) developing a comprehensive
accounting system and conducting internal audits under Section 2.07, (ii)
reviewing service contracts under Section 2.09, (iii) administering property
taxes under Section 2.10, (iv) performing construction management services under
Section 2.11 or (v) administering insurance and workplace safety procedures
under Section 5.01.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed and delivered, as of the day and year first above written.
"OWNER"
TRANSCONTINENTAL REALTY INVESTORS, INC.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Attest: /s/ XXXXXX XXXXXX
--------------------------------
Xxxxxx Xxxxxx
Its: Assistant Secretary
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"MANAGER"
CARMEL REALTY SERVICES, LTD., a
Texas partnership
By Its General Partner
BASIC CAPITAL MANAGEMENT, INC.,
a Nevada corporation
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Attest: /s/ XXXXXX XXXXXX
---------------------------------
Xxxxxx Xxxxxx
Assistant Secretary
(CORPORATE SEAL)
20
EXHIBIT "A"
02/01/98
TRANSCONTINENTAL REALTY INVESTORS, INC. RESIDENTIAL LISTING
NO. PROJECT ENTITY UNITS SQ. FT. METRO (CITY) ST ADDRESS ZIP CODE
====================================================================================================================================
1. ARBOR POINT TRI 194 178,920 ODESSA TX 0000 XXXXXXXX XX. 79762
2. XXXX XXXX XXXXXXX XXX 000 XXXXXXX XX 00000 XXXXXXX XXXX 00000
3. CARSEKA TRI 54 34,359 LOS ANGELES CA 9816 EXPOSITION BLVD. 90034
4. XXXXXXX TRI 63 42,625 LOS ANGELES CA 657 & 665 SOUTH XXXXXXX 90036
5. COUNTRY BEND TRI 166 BENBROOK TX 5608 ROYAL LANE 76109
6. COVENTRY POINTE TRI 120 105,608 MIDLAND TX 3329 WEST XXXXXX 79707
7. CRESCENT PLACE TRI 120 HOUSTON TX 10222 SOUTH XXXXXXX 77071
8. FAIR PARK PINES TRI 49 LOS ANGELES CA 2040 FAIR PARK AVENUE 90041
9. XXXXXXXX XXXXXXX XXX 000 XXXXXX XX 1345 X. XXXX ROAD 85710
10. GLADSTELL FOREST TRI 168 CONROE TX 1000 GLADSTELL 77304
11. XXXXXX'X FERRY TRI 000 XXXXXXXXX XX 000 XXXXXXXX XXXX 00000
12. HERITAGE TRI 136 TULSA OK 4455 E. 31ST STREET 74135
13. INWOOD GREENS TRI-CITY 126 105,960 HOUSTON TX 0000 X. XXXX XXXX 00000
14. XXXXXXXX XXX 000 XXXXXXX XX 0000 X. XXXXX XXXXXXX XX. 00000
15. LINCOLN COURT TRI 55 DALLAS TX 3838 XXXXXXX 75219
16. MARINER'S POINTE TRI 368 310,494 ST. PETERSBURG FL 0000 XXXXXXXX XXXXX XX. X. 00000
17. XXXXXXXX XXXXX XXX 000 XX XXXX XX 3334 ZION STREET 79904
18. OAKS OF INWOOD TRI-CITY 198 153,040 HOUSTON TX 5350 W. GULF BANK 77088
19. XXXXXXXXX XXX 000 XXXX XX 1727 W. EMILITA 85202
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20. XXXXXX XXX XXX 000 XXXXX XX 00000 XXXXXXX ROAD 34643
21. SOUTHGATE TRI 180 151,656 ODESSA TX 0000 XXXX 0XX XXXXXX 79762
22. SPA COVE TRI 303 ANNAPOLIS MD 1002 PRIMROSE ROAD 21403
23. XXXXXXXXXXX XXX 000 XXXXXXX XX 4581 XXXXXXX ROAD 32811
24. SUMMERSTONE TRI 242 188,734 HOUSTON TX 0000 XXXXXXXXX XXXX 00000
25. SUNCHASE TRI 300 ODESSA TX 2201 ROCKY LAND ROAD 79762
26. TERRACE HILL TRI 310 EL PASO TX 4111 WESTCITY COURT 79902
27. TIMBERS ON BROADWAY TRI 100 TYLER TX 0000 XXXXX XXXXXXXX 00000
28. TREEHOUSE TRI 160 153,072 IRVING TX 0000 XXXXXX XXXX XXXX 75038
29. VILLA XXXXXX TRI 132 LOS ANGELES CA 4433 EAGLE ROCK BLVD. 90041
30. XXXXXX XX XXXXXXXXXXX XXX 000 XXXXXXXX XX 000 XXXXXXXX XXXXX, XXXXX 0 00000
31. WESTGATE OF LAUREL TRI 218 LAUREL MD 0000 XXXXXX XXXXXX 20707
32. WESTWOOD SQUARE TRI 79 49,001 ODESSA TX 0000 XXXXXXXX XXXXXX 00000
33. XXXXXXXX XXXXX XXX 00 XXX XXXXXXX XX 7110 WURZBACH ROAD 78240
34. XXXXX EDGE TRI 162 ROCKVILLE MD 00000 XXXX XXXX 20851
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