FORM OF MANAGEMENT AGREEMENT
FORM
OF
MANAGEMENT AGREEMENT
This
management agreement (this “Management
Agreement”)
is
made and entered into as of the day of , 2008, by and among LIGHTSTONE VALUE
PLUS REAL ESTATE INVESTMENT TRUST II, INC., a Maryland corporation (the
“Company”),
LIGHTSTONE VALUE PLUS REIT II LP, a Delaware limited partnership (the
“OP”,
and
together with the Company, the “Owner”),
and
PRIME
RETAIL PROPERTY MANAGEMENT,
LLC, a
Delaware limited liability company (the “Manager”).
WHEREAS,
the OP was organized to acquire, own, operate, lease and manage real estate
properties on behalf of the Company; and
WHEREAS,
the Company intends to continue to raise money from the sale of its common
stock
to be used, net of payment of certain offering costs and expenses, for
investment in the acquisition or rehabilitation of income-producing real estate
to be acquired and held by the Company or by the OP on behalf of the Company;
and
WHEREAS,
Owner wishes to retain Manager to manage and coordinate the leasing of certain
real estate properties acquired by Owner, and the Manager wishes to be so
retained, all under the terms and conditions set forth in this Management
Agreement.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto, intending to be legally bound hereby, do hereby agree as
follows:
ARTICLE
I.
DEFINITIONS
Except
as
otherwise specified or as the context may otherwise require, the following
terms
have the respective meanings set forth below for all purposes of this Management
Agreement, and the definitions of such terms are equally applicable both to
the
singular and plural forms thereof
“Account”
has
the
meaning set forth in Section
2.3(i)
hereof.
“Affiliate”
means
a
person who is (i) in the case of an individual, any relative of such person,
(ii) any officer, director, trustee, partner, manager, employee or holder of
ten
percent (10%) or more of any class of the voting securities of or equity
interest in such person; (iii) any corporation, partnership, limited liability
company, trust or other entity controlling, controlled by or under common
control with such person; or (iv) any officer, director, trustee, partner,
manager, employee or holder of ten percent (10%) or more of the outstanding
voting securities of any corporation, partnership, limited liability company,
trust or other entity controlling, controlled by or under common control with
such person. For purposes of this definition, the term “controls,” “is
controlled by,” or “is under common control with” shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting
rights, by contract or otherwise.
“Director”
means
a
member of the board of directors of the Company.
“Funds
From Operations”
shall
mean net income (computed in accordance with GAAP), excluding gains or losses
from debt restructuring and sales of Properties, plus depreciation of real
property and amortization, and after adjustments for unconsolidated partnerships
and joint ventures.
“GAAP”
shall
mean United States generally accepted accounting principals, consistently
applied.
“Gross
Revenues”
means
all amounts actually collected as rents or other charges for the use and
occupancy of the Properties, but shall exclude interest and other investment
income of Owner and proceeds received by Owner for a sale, exchange,
condemnation, eminent domain taking, casualty or other disposition of assets
of
Owner.
“Improvements”
means
buildings, structures, equipment from time to time located on the Properties
and
all parking and common areas located on the Properties.
“Independent
Director”
shall
have the meaning set forth in the charter of the Company as in effect from
time
to time.
“Management
Fees”
has
the
meaning set forth in Section
4.1
hereof.
“Properties”
means
all real estate properties owned by Owner and all tracts as yet unspecified
but
to be acquired by Owner containing income-producing Improvements or on which
Owner will rehabilitate income-producing Improvements. For the purposes of
this
Management Agreement, the term “Properties” shall only refer to retail
properties and not residential, industrial or office properties.
“Share”
shall
mean a share of the common stock, par value $0.01, of the Company.
ARTICLE
II
APPOINTMENT
OF MANAGER; SERVICES TO BE PERFORMED
2.1 Appointment
of Manager.
Owner
hereby engages and retains Manager as the sole and exclusive manager and agent
of the Properties, and Manager hereby accepts such appointment, all on the
terms
and conditions hereinafter set forth, it being understood that this Management
Agreement shall cause Manager to be, at law, Owner’s agent upon the terms
contained herein.
2.2 General
Duties.
Manager
shall devote its best efforts to performing its duties hereunder to manage,
operate, maintain and lease the Properties in a diligent, careful and vigilant
manner. The services of Manager are to be of scope and quality not less than
those generally performed by professional property managers of other similar
properties in the area. Manager shall make available to Owner the full benefit
of the judgment, experience and advice of the members of Manager’s organization
and staff with respect to the policies to be pursued by Owner relating to the
operation and leasing of the Properties.
2
2.3 Specific
Duties.
Manager’s duties include the following:
| (a) |
Lease
Obligations.
Manager shall perform all duties of the landlord under all leases
insofar
as such duties relate to operation, maintenance, and day-to-day
management. Manager shall also provide or cause to be provided, at
Owner’s
expense, all services normally provided to tenants of like premises,
including, where applicable and without limitation, gas, electricity
or
other utilities required to be furnished to tenants under leases,
normal
repairs and maintenance, and cleaning, and janitorial service. Manager
shall arrange for and supervise the performance of all installations
and
improvements in space leased to any tenant which are either expressly
required under the terms of the lease of such space or which are
customarily provided to tenants.
|
| (b) |
Maintenance.
Manager shall cause the Properties to be maintained in the same manner
as
similar properties in the area. Manager’s duties and supervision in this
respect shall include, without limitation, cleaning of the interior
and
the exterior of the Improvements and the public common areas on the
Properties and the making and supervision of repair, alterations,
and
decoration of the Improvements, subject to and in strict compliance
with
this Management Agreement and any applicable leases. Construction
and
rehabilitation activities undertaken by the Manager, if any, will
be
limited to activities related to the management, operation, maintenance,
and leasing of the Property (e.g., repairs, renovations, and leasehold
improvements).
|
| (c) |
Leasing
Functions.
Manager shall coordinate the leasing of the Properties and shall
negotiate
and use its best efforts to secure executed leases from qualified
tenants,
and to execute same on behalf of Owner, if requested, for available
space
in the Properties, such leases to be in form and on terms approved
by
Owner and Manager, and to bring about complete leasing of the Properties.
Manager shall be responsible for the hiring of all leasing agents,
as
necessary for the leasing of the Properties, and to otherwise oversee
and
manage the leasing process on behalf of the
Owner.
|
| (d) |
Notice
of Violations.
Manager shall forward to Owner promptly upon receipt all notices
of
violation or other notices from any governmental authority, and board
of
fire underwriters or any insurance company, and shall make such
recommendations regarding compliance with such notice as shall be
appropriate.
|
| (e) |
Personnel.
Any personnel hired by Manager to maintain, operate and lease the
Property
shall be the employees or independent contractors of Manager and
not of
the Owner. Manager shall use due care in the selection and supervision
of
such employees or independent contractors. Manager shall be responsible
for the preparation of and shall timely file all payroll tax reports
and
timely make payments of all withholding and other payroll taxes with
respect to each employee.
|
| (f) |
Utilities
and Supplies.
Manager shall enter into or renew contracts for electricity, gas,
steam,
landscaping, fuel, oil, maintenance and other services as are customarily
furnished or rendered in connection with the operation of similar
rental
property in the area.
|
3
| (g) |
Expenses.
Manager shall analyze all bills received for services, work and supplies
in connection with the maintaining and operating the Properties,
pay all
such bills, and, if requested by Owner, pay, when due, utility and
water
charges, sewer rent and assessments, any applicable taxes, including,
without limitation, any real estate taxes, and any other amount payable
in
respect to the Properties. All bills shall be paid by Manager within
the
time required to obtain discounts, if any. Owner may from time to
time
request that Manager forward certain bills to Owner promptly after
receipt, and Manager shall comply with any such request. It is understood
that the payment of real property taxes and assessment and insurance
premiums will be paid out of the Account (as hereinafter defined)
by
Manager. All expenses shall be billed at net cost (i.e., less all
rebates,
commissions, discounts and allowances, however
designed).
|
| (h) |
Monies
Collected.
Manager shall collect all rent and other monies from tenants and
any sums
otherwise due Owner with respect to the Properties in the ordinary
course
of business. In collecting such monies, Manager shall inform tenants
of
the Properties that all remittances are to be in the form of a check
or
money order. Owner authorizes Manager to request, demand, collect
and
receipt for all such rent and other monies and to institute legal
proceedings in the name of Owner for the collection thereof and for
the
dispossession of any tenant in default under its lease.
|
| (i) |
Banking
Accommodations.
Manager shall establish and maintain a separate checking account
(the
“Account”)
for funds relating to the Properties. All monies deposited from time
to
time in the Account shall be deemed to be trust funds and shall be
and
remain the property of Owner and shall be withdrawn and disbursed
by
Manager for the account of Owner only as expressly permitted by this
Management Agreement for the purposes of performing the obligations
of
Manager hereunder. No monies collected by Manager on Owner’s behalf shall
be commingled with funds of Manager. The Account shall be maintained,
and
monies shall be deposited therein and withdrawn therefrom, in accordance
with the following:
|
(i) All
sums
received from rents and other income from the Properties shall be promptly
deposited by Manager in the Account. Manager shall have the right to designate
two or more persons who shall be authorized to draw against the Account, but
only for purposes authorized by this Management Agreement.
(ii) All
sums
due to Manager hereunder, whether for compensation, reimbursement for
expenditures, or otherwise, as herein provided, shall be a charge against the
operating revenues of the Properties and shall be paid and/or withdrawn by
Manager from the Account prior to the making of any other disbursements
therefrom.
(iii)
By the
30th day of the first month following each calendar quarter, Manager shall
forward to Owner net operating proceeds from the preceding quarter, retaining
at
all times, however a reserve of $5,000, in addition to any amounts otherwise
provided in the budget.
4
| (j) |
Tenant
Complaints.
Manager shall maintain business-like relations with the tenants of
the
Properties.
|
| (k) |
Ownership
Agreements.
Manager has received copies of the Agreement of Limited Partnership
of the
OP and the constitutive documents of the Company (collectively, the
“Ownership
Agreements”)
and is familiar with the terms thereof. Manager shall use reasonable
care
to avoid any act or omission which, in the performance of its duties
hereunder, shall in any way conflict with the terms of the Ownership
Agreements.
|
| (l) |
Signs.
Manager shall place and remove, or cause to be placed and removed,
such
signs upon the Properties as Manager deems appropriate, subject,
however,
to the terms and conditions of the leases and to any applicable ordinances
and regulations.
|
2.4 Approval
of Leases, Contracts, Etc.
In
fulfilling its duties to the Owner, Manager may and hereby is authorized to
enter into any leases, contracts or agreements on behalf of the Owner in the
ordinary course of the management, operation, maintenance and leasing of the
Property.
2.5 Accounting,
Records and Reports.
| (a) |
Records.
Managers shall maintain all office records and books of account and
shall
record therein, and keep copies of, each invoice received from services,
work and supplies ordered in connection with the maintenance and
operation
of the Properties. Such records shall be maintained on a double entry
basis. Owner and persons designated by Owner shall at all reasonable
time
have access to and the right to audit and make independent examinations
of
such records, books and accounts and all vouchers, files and all
other
material pertaining to the Properties and this Management Agreement,
all
of which Manager agrees to keep safe, available and separate from
any
records not pertaining to the Properties, at a place recommended
by
Manager and approved by Owner.
|
| (b) |
Quarterly
Reports.
On or before the 30th day of the first month following each calendar
quarter for which such report or statement is prepared and during
the term
of this Management Agreement, Manager shall prepare and submit to
Owner
the following reports and
statements:
|
| (i) |
Rental
collection record;
|
| (ii) |
Quarterly
operating statement;
|
| (iii) |
Copy
of cash disbursements ledger entries for such period, if
requested;
|
| (iv) |
Copy
of cash receipts ledger entries for such period, if
requested;
|
| (v) |
The
original copies of all contracts entered into by Manager on behalf
of
Owner during such period, if requested;
and
|
5
| (vi) |
Copy
of ledger entries for such period relating to security deposits maintained
by Manager, if requested.
|
| (c) |
Budgets
and Leasing Plans.
Not later than November 15 of each calendar year, Manager shall prepare
and submit to Owner for its approval an operating budget and a marketing
and leasing plan on the Properties for the calendar year immediately
following such submission. The budget and leasing plan shall be in
the
form of the budget and plan approved by Owner prior to the date thereof.
As often as reasonably necessary during the period covered by any
such
budget, Manager may submit to Owner for its approval an updated budget
or
plan incorporating such changes as shall be necessary to reflect
cost
over-runs and the like during such period. If Owner does not disapprove
any such budget within 30 days after receipt thereof by Owner, such
budget
shall be deemed approved. If Owner shall disapprove any such budget
or
plan, it shall so notify Manager within said 30-day period and explain
the
reasons therefor. Manager will not incur any costs other than those
estimated in any budget except for:
|
| (i) |
maintenance
or repair costs under $5,000;
|
| (ii) |
costs
incurred in emergency situations in which action is immediately necessary
for the preservation or safety of the Property, or for the safety
of
occupant or other person (or to avoid the suspension of any necessary
service of the Property);
|
| (iii) |
expenditures
for real estate taxes and assessment;
and
|
| (iv) |
maintenance
supplies calling for an aggregate purchase price less than
$25,000.
|
| (d) |
Returns
Required by Law.
Manager shall execute and file when due all forms, reports, and returns
required by law relating to the employment of its
personnel.
|
| (e) |
Notices.
Promptly after receipt, Manager shall deliver to Owner all notices,
from
any tenant, or any governmental authority, that are not a routine
nature.
Managers shall also report expeditiously to Owner notice of any extensive
damage to any part of the
Properties.
|
2.6 Subcontracting.
Notwithstanding anything to the contrary contained in this Agreement, the
Manager may subcontract any of its duties hereunder, without the consent of
the
Owner being required, for a fee that may be less than the Management Fees paid
hereunder. In the event that the Manager does so contract any of its duties
hereunder, such fees payable to such third parties may, at the instruction
of
the Manager, be deducted from the monthly Management Fee payable to the Manager
hereunder and paid by the Owner to such parties, or paid directly by the Manager
to such parties, in its discretion.
ARTICLE
III
EXPENSES
6
3.1 Owner’s
Expenses.
Except
as otherwise specifically provided, all costs and expenses incurred hereunder
by
Manager in fulfilling its duties to Owner shall be for the account of and on
behalf of Owner. Such costs and expenses may include reasonable wages and
salaries and other employee-related expenses of all on-site and off-site
employees of Manager who are engaged in the operation, management, maintenance
and leasing or access control of the Properties, including taxes, insurance
and
benefits relating to such employees, and legal, travel and other out-of-pocket
expenses which are directly related to the management of specific Properties.
All costs and expenses for which Owner is responsible under this Management
Agreement shall be paid by Manager out of the Account. In the event said account
does not contain sufficient funds to pay all said expenses, Owner shall fund
all
sums necessary to meet such additional costs and expenses.
3.2 Manager’s
Expenses.
Manager
shall, out of its own funds, pay all of its general overhead and administrative
expenses.
ARTICLE
IV
MANAGER’S
COMPENSATION
4.1 Management
Fees.
Manager
shall provide the services described in Article II in return for fees (the
“Management
Fees”),
which
shall be payable by the OP on a monthly basis, and shall equal 5% of Gross
Revenues from Properties, including all rent-up, leasing, and re-leasing fees
and bonuses paid to any person. Notwithstanding the foregoing, Manager may
be
entitled to receive higher fees in the event Manager can demonstrate to the
satisfaction of the board of directors of the Company (including a majority
of
the Independent Directors) through empirical data that a higher competitive
fee
is justified for the services rendered and the type of Property managed. As
described in Section
2.6
above,
in the event that Manager properly engages one or more third parties to perform
the services described herein, the fees payable to such parties for such
services will be deducted from the monthly Management Fees payable by the OP
to
Manager, or paid directly by Manager, at Manager’s option. Manager’s
compensation under this Section
4.1
shall
apply to all renewals, extensions or expansions of leases which Manager has
originally negotiated.
4.2 Additional
Fees.
In the
event that the Manager provides services other than those specified herein,
the
OP shall pay to Manager a monthly fee equal to no more than that which the
OP
would pay to a third party that is not an Affiliate of the Owner or the Manager
to provide such services.
4.3 Audit
Adjustment.
If any
audit of the records, books or accounts relating to the Properties discloses
an
overpayment or underpayment of Management Fees, Owner or Manager shall promptly
pay to the other party the amount of such overpayment or underpayment, as the
case may be. If such audit discloses an overpayment of Management Fees for
any
fiscal year of more than the correct Management Fees for such fiscal year,
Manager shall bear the cost of such audit.
ARTICLE
V
7
INSURANCE
AND INDEMNIFICATION
5.1 Insurance
to be Carried.
| (a) |
Manager
shall obtain and keep in full force and effect insurance on the Properties
against such hazards as Owner and Manager shall deem appropriate,
but in
any event insurance sufficient to comply with the leases and the
Ownership
Agreements shall be maintained. All liability policies shall provide
sufficient insurance satisfactory to both Owner and Manager and shall
contain waivers of subrogation for the benefit of
Manager.
|
| (b) |
Manager
shall obtain and keep in full force and effect, in accordance with
the
laws of the state in which each Property is located, employer’s liability
insurance applicable to and covering all employees of Manager at
the
Properties and all persons engaged in the performance of any work
required
hereunder, and Manager shall furnish Owner certificates of insurers
naming
Owner as a co-insured and evidencing that such insurance is in effect.
If
any work under this Management Agreement is subcontracted as permitted
herein, Manager shall include in each subcontract a provision that
the
subcontractor shall also furnish Owner with such a
certificate.
|
5.2 Cooperation
with Insurers.
Manager
shall cooperate with and provide reasonable access to the Properties to
representatives of insurance companies and insurance brokers or agents with
respect to insurance which is in effect or for which application has been made.
Manager shall use its best efforts to comply with all requirements of
insurers.
5.3 Accidents
and Claims.
Manager
shall promptly investigate and shall report in detail to Owner all accidents,
claims for damage relating to the ownership, operation or maintenance of the
Properties, and any damage or destruction to the Properties and the estimated
costs of repair thereof, and shall prepare for approval by Owner all reports
required by an insurance company in connection with any such accident, claim,
damage, or destruction. Such reports shall be given to Owner promptly and any
report not so given within 10 days after the occurrence of any such accident,
claim, damage or destruction shall be noted in the monthly report delivered
to
Owner pursuant to Section
2.5(b).
Manager
is authorized to settle any claim against an insurance company arising out
of
any policy and, in connection with such claim, to execute proofs of loss and
adjustments of loss and to collect and receipt for loss proceeds.
5.4 Indemnification.
Manager
shall hold Owner harmless from and indemnify and defend Owner against any and
all claims or liability for any injury or damage to any person or property
whatsoever for which Manager is responsible occurring in, on, or about the
Properties, including, without limitation, the Improvements when such injury
or
damage shall be caused by the negligence of Manager, its agents, servants,
or
employees, except to the extent that Owner recovers insurance proceeds with
respect to such matter. Owner will indemnify and hold Manager harmless against
all liability for injury to persons and damage to property caused by Owner’s
negligence and which did not result from the negligence of misconduct of
Manager, except to the extent Manager recovers insurance proceeds with respect
to such matter.
8
ARTICLE
VI
TERM,
TERMINATION
6.1 Term.
This
Management Agreement shall commence on the date first above written and shall
continue until terminated in accordance with the earliest to occur of the
following:
| (a) |
One
year from the date of the commencement of the term hereof. However,
this
Management Agreement will be automatically extended for an additional
one
year period at the end of each year unless any party gives sixty
(60) days
written notice to the others of its intention to terminate this Management
Agreement; or
|
| (b) |
Immediately
upon the occurrence of any of the
following:
|
(i) A
decree
or order is rendered by a court having jurisdiction (A) adjudging Manager as
bankrupt or insolvent, or (B) approving as properly filed a petition seeking
reorganization, readjustment, arrangement, composition or similar relief for
Manager under the federal bankruptcy laws or any similar applicable law or
practice, or (C) appointing a receiver or liquidator or trustee or assignee
in
bankruptcy or insolvency of Manager or a substantial part of the property of
Manager, or for the winding up or liquidation of its affairs, or
(ii) Manager
(A) institutes proceedings to be adjudicated a voluntary bankrupt or an
insolvent, (B) consents to the filing of a bankruptcy proceeding against it,
(C)
files a petition or answer or consent seeking reorganization, readjustment,
arrangement, composition or relief under any similar applicable law or practice,
(D) consents to the filing of any such petition, or to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency for
it
or for a substantial part of its property, (E) makes an assignment for the
benefit of creditors, (F), is unable to or admits in writing its inability
to
pay its debts generally as they become due unless such inability shall be the
fault of Owner, or (G) takes corporate or other action in furtherance of any
of
the aforesaid purposes.
|
(c)
|
Upon
written notice from the Owner in the event that the Manager commits
an act
of gross negligence or willful misconduct in the performance of its
duties
hereunder.
|
Upon
termination, the obligations of the parties hereto shall cease, provided that
Manager shall comply with the provisions hereof applicable in the event of
termination and shall be entitled to receive all compensation which may be
due
Manager hereunder up to the date of such termination, and provided, further,
that if this Management Agreement terminates pursuant to clauses (b) or (c)
above, Owner shall have other remedies as may be available at law or in
equity.
6.2 Manager’s
Obligations after Termination.
Upon
the termination of this Management Agreement, Manager shall have the following
duties:
| (a) |
Manager
shall deliver to Owner, or its designee, all books and records with
respect to the Properties.
|
9
| (b) |
Manager
shall transfer and assign to Owner, or its designee, all service
contracts
and personal property relating to or used in the operation and maintenance
of the Properties, except personal property paid for and owned by
Manager.
Manager shall also, for a period of sixty (60) days immediately following
the date of such termination, make itself available to consult with
and
advise Owner, or its designee, regarding the operation, maintenance
and
leasing of the Properties.
|
| (c) |
Manager
shall render to Owner an accounting of all funds of Owner in its
possession and shall deliver to Owner a statement of Management Fees
claimed to be due Manager and shall cause funds of Owner held by
Manager
relating to the Properties to be paid to Owner or its
designee.
|
ARTICLE
VII
MISCELLANEOUS
7.1.
Notices.
All
notices, approvals, consents and other communications hereunder shall be in
writing, and, except when receipt is required to start the running of a period
of time, shall be deemed given when delivered in person or on the fifth day
after its mailing by either party by registered or certified United States
mail,
postage prepaid and return receipt requested, to the other party, at the
addresses set forth after their respect name below or at such different
addresses as either party shall have theretofore advised the other party in
writing in accordance with this Section
7.1.
|
|
Owner:
Lightstone
Value Plus Real Estate Investment Trust II, Inc.
000
Xxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxxxxxxxxxx
Chief Executive Officer
Lightstone
Value Plus REIT II LP
000
Xxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxxxxxxxxxx
With
a copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxx, Esq.
|
10
Manager:
Prime
Retail Property Management, LLC
000
Xxxxx
Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxxxxxxxxxx
With
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxx, Esq.
7.2.
Governing
Law.
This
Management Agreement shall be governed by and construed in accordance with
the
laws of the State of New York.
7.3.
Assignment.
Without
derogating from Section
2.6
hereof,
this Management Agreement may not be assigned by the Manager, except to an
Affiliate of the Manager, and then only upon the consent of the Owner and the
approval of a majority of the Independent Directors. Any assignee of the Manager
shall be bound hereunder to the same extent as the Manager. This Agreement
shall
not be assigned by either Owner without the written consent of the Manager,
except to a corporation, association, trust or other organization which is
a
successor to such Owner. Such successor shall be bound hereunder to the same
extent as such Owner. Notwithstanding anything to the contrary contained herein,
the economic rights of the Manager hereunder, including the right to receive
all
compensation hereunder, may be sold, transferred or assigned by the Manager
without the consent of the Owners.
7.4.
Amendments.
This
Management Agreement may be amended only by an instrument in writing signed
by
the party against whom enforcement of the amendment is sought
7.5.
No
Waiver.
Neither
the failure nor any delay on the party of a party to exercise any right, remedy,
power or privilege under this Management Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right, remedy, power or privilege with respect to any other occurrences.
No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
7.6.
Headings.
The
headings of the various subdivisions of this Management Agreement are for
reference only and shall not define or limit any of the terms or provisions
hereof.
7.7.
Counterparts.
This
Management Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and it shall not be necessary in making proof
of
this Management Agreement to produce or account for more than one such
counterpart.
7.8
Entire
Agreement.
This
Management Agreement contains the entire agreement and understanding among
the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof.
11
7.9.
Disputes.
If
there shall be a dispute between Owner and Manager relating to this Management
Agreement resulting in litigation, the prevailing party in such litigation
shall
be entitled to recover from the other party to such litigation such amount
as
the court shall fix as reasonable attorneys’ fees.
7.10.
Activities
of Manager.
The
obligations of Manager pursuant to the terms and provisions of this Management
Agreement shall not be construed to preclude Manager 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
Owner.
7.11.
Independent
Contractor.
Manager
and Owner shall not be construed as joint venturers or partners of each other
pursuant to this Management Agreement, and neither shall have the power to
bind
or obligate the other except as set forth herein. In all respects, the status
of
Manager to Owner under this Management Agreement is that of an independent
contractor.
[Signature
page follows.]
12
IN
WITNESS WHEREOF, the parties have executed this Management Agreement as of
the
date first above written.
| LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST II, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| LIGHTSTONE VALUE PLUS REIT II LP | ||
| |
By: |
Lightstone Value Plus Real Estate Investment
Trust II, Inc.,
its
General Partner
|
| By: | ||
|
Name: |
||
| Title: | ||
| PRIME RETAIL PROPERTY MANAGEMENT, LLC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
