Contract
Exhibit
10.3
FORM
OF
PROPERTY MANAGEMENT AND
LEASING AGREEMENT
This
property management and leasing agreement (this “Management
Agreement”) is made and entered into as of
the day
of ,
2010, by and among AMERICAN REALTY CAPITAL TRUST II, INC., a Maryland
corporation (the “Company”), AMERICAN
REALTY CAPITAL OPERATING PARTNERSHIP II, L.P., a Delaware limited partnership
(the “OP”), and
AMERICAN REALTY CAPITAL PROPERTIES II, 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 and rehabilitation of income-producing real estate
and other real-estate related investments, which are to be acquired and held by
the Company or by the OP on behalf of the Company; and
WHEREAS,
the Owner desires to retain the Manager to manage and coordinate the leasing of
the real estate properties acquired by the Owner, and the Manager desires to be
so retained, all under the terms and conditions set forth in this Management
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties 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:
1.1 “Account” has the
meaning set forth in Section 2.3(i)
hereof.
1.2 “Affiliate” means with
respect to any Person, (i) any Person directly or indirectly owning, controlling
or holding, with the power to vote, ten percent (10%) or more of the outstanding
voting securities of such other Person; (ii) any Person ten percent (10%) or
more of whose outstanding voting securities are directly or indirectly owned,
controlled or held, with the power to vote, by such other Person; (iii) any
Person directly or indirectly controlling, controlled by or under common control
with such other Person; (iv) any executive officer, director, trustee or general
partner of such other Person; and (v) any legal entity for which such Person
acts as an executive officer, director, trustee or general
partner. For purposes of this definition, the terms “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 ownership or voting
rights, by contract or otherwise.
1.3 “Articles of
Incorporation” means the Articles of Incorporation of the Company, as
amended from time to time.
1.4 “Budget” has the
meaning set forth in Section 2.5(c)
hereof.
1.5 “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 the Owner and proceeds received by the Owner for a sale, exchange,
condemnation, eminent domain taking, casualty or other disposition of assets of
the Owner.
1.6 “Improvements” means
buildings, structures, equipment from time to time located on the Properties and
all parking and common areas located on the Properties.
1.7 “Independent Director”
has the meaning set forth in the Articles of Incorporation.
1.8 “Joint Venture” means
the joint venture or partnership arrangements (other than between the Company
and the OP) in which the Company or the OP or any of their subsidiaries is a
co-venturer or general partner which are established to own
Properties.
1.9 “Management Fees” has
the meaning set forth in Section 4.1(a)
hereof.
1.10 “Oversight Fees” has
the meaning set forth in Section 4.2
hereof.
1.11 “Owner” means the
Company, the OP and any Joint Venture that owns, in whole or in part, any
Properties.
1.12 “Ownership Agreements”
has the meaning set forth in Section 2.3(k)
hereof.
1.13 “Person” means an
individual, corporation, partnership, joint venture, association, company
(whether of limited liability or otherwise), trust, bank or other entity, or
government or any agency or political subdivision of a government.
1.14 “Plan” has the meaning
set forth in Section
2.5(c) hereof.
1.15 “Properties” means all
real estate properties owned by the Owner and all tracts as yet unspecified but
to be acquired by the Owner containing income-producing Improvements or on which
the Owner will develop or rehabilitate income-producing
Improvements.
ARTICLE
II.
APPOINTMENT
OF THE MANAGER; SERVICES TO BE PERFORMED
2.1 Appointment of the
Manager. The Owner hereby engages and retains the Manager as
the sole and exclusive manager and agent of the Properties, and the Manager
hereby accepts such appointment, all on the terms and conditions hereinafter set
forth, it being understood that this Management Agreement shall cause the
Manager to be, at law, the Owner’s agent upon the terms contained
herein.
2.2 General
Duties. The Manager shall use commercially reasonable efforts
in performing its duties hereunder to manage, operate, maintain and lease the
Properties in a diligent, careful and vigilant manner. The services
of the 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. The Manager shall make available to the Owner the full benefit
of the judgment, experience and advice of its members and staff with respect to
the policies to be pursued by the Owner relating to the operation and leasing of
the Properties.
2.3 Specific
Duties. The Manager’s duties include the
following:
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(a)
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Lease
Obligations. The Manager shall
perform all duties of the landlord under all leases insofar as such duties
relate to the operation, maintenance, and day-to-day management of the
Properties. The Manager shall also provide or cause to be
provided, at the 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. The 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.
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(b)
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Maintenance. The Manager shall
cause the Properties to be maintained in the same manner as similar
properties in the area. The 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).
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(c)
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Leasing
Functions. The 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 the Owner, if requested, for available space in
the Properties, such leases to be in form and on terms approved by the
Owner and the Manager, and to bring about complete leasing of the
Properties. The 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.
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(d)
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Notice
of Violations. The Manager shall
forward to the 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.
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(e)
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Personnel. Any personnel hired
by the Manager to maintain, operate and lease the Property shall be the
employees or independent contractors of the Manager and not of the
Owner. The Manager shall use due care in the selection and
supervision of such employees or independent contractors. The
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.
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(f)
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Utilities
and Supplies. The 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.
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(g)
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Expenses. The Manager shall
analyze all bills received for services, work and supplies in connection
with maintaining and operating the Properties, pay all such bills, and, if
requested by the 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 the Manager within the
time required to obtain discounts, if any. The Owner may from
time to time request that the Manager forward certain bills to the Owner
promptly after receipt, and the Manager shall comply with any such
request. The payment of all bills, real property taxes,
assessments, insurance premiums and any other amounts payable with respect
to the Properties shall be paid out of the Account by the
Manager. All expenses shall be billed at net cost (i.e., less
all rebates, commissions, discounts and allowances, however
designed).
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(h)
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Monies
Collected. The Manager shall
collect all rent and other monies from tenants and any sums otherwise due
to the Owner with respect to the Properties in the ordinary course of
business. In collecting such monies, the Manager shall inform
tenants of the Properties that all remittances are to be in the form of a
check or money order. The Owner authorizes the Manager to
request, demand, collect and provide receipts for all such rent and other
monies and to institute legal proceedings in the name of the Owner for the
collection thereof and for the dispossession of any tenant in default
under its lease.
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(i)
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Banking
Accommodations. The
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 the Owner and shall be withdrawn and disbursed by the Manager
for the account of the Owner only as expressly permitted by this
Management Agreement for the purposes of performing the obligations of the
Manager hereunder. No monies collected by the Manager on the
Owner’s behalf shall be commingled with funds of the
Manager. The Account shall be maintained, and monies shall be
deposited therein and withdrawn therefrom, in accordance with the
following:
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(i) All
sums received from rents and other income from the Properties shall be promptly
deposited by the Manager in the Account. The Manager shall have the
right to designate two (2) 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 the 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 the
Manager from the Account prior to the making of any other disbursements
therefrom.
(iii) On
or before the 30th day following the end of each calendar quarter during the
term of this Management Agreement, the Manager shall forward to the Owner all
net operating proceeds from the preceding quarter, retaining at all times,
however, a reserve of $5,000, in addition to any other amounts otherwise
provided in the Budget.
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(j)
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Tenant
Complaints. The Manager shall
maintain business-like relations with the tenants of the
Properties.
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(k)
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Ownership
Agreements. The Manager has
received copies of the Agreement of Limited Partnership of the OP,
Articles of Incorporation and the other constitutive documents of the
Owner (collectively, the “Ownership
Agreements”) and is
familiar with the terms thereof. The 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.
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(l)
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Signs. The Manager shall
place and remove, or cause to be placed and removed, such signs upon the
Properties as the Manager deems appropriate, subject, however, to the
terms and conditions of the leases and to any applicable ordinances and
regulations.
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2.4 Approval of Leases,
Contracts, Etc. In fulfilling its duties to the Owner, the
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 Properties.
2.5 Accounting, Records and
Reports.
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(a)
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Records. The Manager 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. The Owner and persons designated by the Owner shall at
all reasonable times 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 the Manager agrees to keep safe,
available and separate from any records not pertaining to the Properties,
at a place recommended by the Manager and approved by the
Owner.
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(b)
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Quarterly
Reports. On or before the
30th day following the end of each calendar quarter during the term of
this Management Agreement, the Manager shall prepare and submit to the
Owner the following reports and
statements:
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(i)
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Rental collection
record;
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(ii)
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Quarterly operating
statement;
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(iii)
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Copy of cash disbursements ledger
entries for such period, if
requested;
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(iv)
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Copy of cash receipts ledger
entries for such period, if
requested;
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(v)
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The original copies of all
contracts entered into by the Manager on behalf of the Owner during such
period, if requested;
and
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(vi)
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Copy of ledger entries for such
period relating to security deposits maintained by the Manager, if
requested.
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(c)
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Budgets
and Leasing Plans. On or before
November 15 of each calendar year, the Manager shall prepare and submit to
the Owner for its approval an operating budget (a “Budget”) and a marketing and leasing
plan (a “Plan”) on the Properties for the
calendar year immediately following such submission. Each
Budget and 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 Budget or Plan, the Manager may submit to the Owner
for its approval an updated Budget or Plan incorporating such changes as
shall be necessary to reflect cost overruns and the like during such
period. If the Owner does not disapprove a Budget or Plan
within thirty (30) days after receipt thereof by the Owner, such Budget or
Plan shall be deemed approved. If the Owner shall disapprove
any Budget or Plan, it shall so notify the Manager within said thirty (30)
day period and explain the reasons therefor. The Manager will
not incur any costs other than those estimated in an approved Budget
except for:
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(i)
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maintenance or repair costs under
$5,000 per Property;
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(ii)
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costs incurred in emergency
situations in which action is immediately necessary for the preservation
or safety of the Property, or for the safety of occupants or other persons
on the Property (or to avoid the suspension of any necessary service of
the Property);
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(iii)
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expenditures for real estate
taxes and assessments; and
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(iv)
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maintenance supplies calling for
an aggregate purchase price of less than $25,000 for all
Properties.
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(d)
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Returns
Required by Law. The Manager shall
execute and file when due all forms, reports, and returns required by law
relating to the employment of its
personnel.
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(e)
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Notices. Promptly after
receipt, the Manager shall deliver to the Owner all notices, from any
tenant, or any governmental authority, that are not of a routine
nature. The Manager shall also report expeditiously to the
Owner notice of any extensive damage to any part of the
Properties.
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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, for a
fee that may be less than the Management Fees paid hereunder. In the
event that the Manager does so subcontract any its duties hereunder, such fees
payable to such third parties may, at the instruction of the Manager, be
deducted from the Management Fee and paid by the Owner to such parties, or paid
directly by the Manager to such parties, in its discretion.
ARTICLE
III.
EXPENSES
3.1 Owner’s
Expenses. Except as otherwise specifically provided, all costs
and expenses incurred hereunder by the Manager in fulfilling its duties to the
Owner shall be for the account of and on behalf of the Owner. Such
costs and expenses may include, without limitation, reasonable wages and
salaries and other employee-related expenses of all on-site and off-site
employees of the Manager who are engaged in the operation, management,
maintenance and leasing 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 operation, management, maintenance
and leasing of specific Properties. All costs and expenses for which
the Owner is responsible under this Management Agreement shall be paid by the
Manager out of the Account. In the event the Account does not contain
sufficient funds to pay all of the costs and expenses, the Owner shall fund all
sums necessary to meet such additional costs and expenses.
3.2 Manager’s
Expenses. The 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.
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(a)
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The Owner shall pay the Manager
or any of its Affiliates property management fees (the “Management
Fees”), on a monthly
basis, equal to: (i) with respect to stand-alone, single-tenant
net leased Properties, two percent (2%) of Gross Revenues from the
Properties managed; and (ii) with respect to multitenant Properties, four
percent (4%) of Gross Revenues from the Properties managed, plus
market-based leasing commissions applicable to the geographic location of
the Property. Except as otherwise set forth herein, the Owner shall also
reimburse the Manager for any costs and expenses incurred by the Manager
in connection with managing the
Properties.
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(b)
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The Manager may charge a separate
fee for the one-time initial rent-up or leasing-up of newly constructed
Properties in an amount not to exceed the fee customarily charged in arm’s
length transactions by others rendering similar services in the same
geographic area for similar
properties.
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(c)
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Notwithstanding the foregoing,
the Manager may be entitled to receive higher fees in the event the
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 the 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 Management Fees, or paid
directly by the Manager, at the Manager’s option. The Manager’s
compensation under this Section
4.1 shall apply to
all renewals, extensions or expansions of leases which the Manager
originally negotiated.
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4.2 Oversight
Fees. If the Owner contracts directly with one or more third
parties for the services described in Section 2.3 above, the Owner will pay such
third parties customary market fees and shall pay the Manager oversight fees
(the “Oversight
Fees”) equal to 1.0% of the Gross Revenues of the particular Property
managed by such third parties. In no event shall the Manager (including any
Affiliate of the Manager) be entitled to both Management Fees and Oversight Fees
with respect to any particular Property.
4.3 Additional
Fees. If the Manager provides services other than those
specified herein, the Owner shall pay to the Manager a monthly fee equal to no
more than that which the Owner would pay to a third party that is not an
Affiliate of the Owner or the Manager to provide such services.
4.4 Audit
Adjustment. If any audit of the records, books or accounts
relating to the Properties discloses an overpayment or underpayment of
Management Fees, the Owner or the 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, the
Manager shall bear the cost of such audit.
ARTICLE
V.
INSURANCE
AND INDEMNIFICATION
5.1 Insurance to be
Carried.
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(a)
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The Manager shall obtain and keep
in full force and effect insurance on the Properties against such hazards
as the Owner and the 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 the Owner and the
Manager and shall contain waivers of subrogation for the benefit of the
Manager.
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(b)
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The 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 the Manager at the Properties and all
persons engaged in the performance of any work required hereunder, and the
Manager shall furnish the Owner certificates of insurers naming the Owner
as a co-insured and evidencing that such insurance is in
effect. If any of the Manager’s duties hereunder are
subcontracted as permitted under Section
2.6, the Manager
shall include in each subcontract a provision that the subcontractor shall
also furnish the Owner with such a
certificate.
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5.2 Cooperation with
Insurers. The 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. The Manager shall use its best
efforts to comply with all requirements of insurers.
5.3 Accidents and
Claims. The Manager shall promptly investigate and report in
detail to the 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 the Owner all reports required by an insurance company in connection
with any such accident, claim, damage, or destruction. Such reports
shall be given to the Owner promptly and any report not so given within ten (10)
days after the occurrence of any such accident, claim, damage or destruction
shall be noted in the report delivered to the Owner pursuant to Section
2.5(b). The 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
provide receipts for loss proceeds.
5.4 Indemnification. The
Manager shall hold the Owner harmless from and indemnify and defend the Owner
against any and all claims or liability for any injury or damage to any person
or property whatsoever for which the Manager is responsible occurring in, on, or
about the Properties, including, without limitation, the Improvements when such
injury or damage is caused by the negligence or misconduct of the Manager, its
agents, servants, or employees, except to the extent that the Owner recovers
insurance proceeds with respect to such matter. The Owner will
indemnify and hold the Manager harmless against all liability for injury to
persons and damage to property caused by the Owner’s negligence and which did
not result from the negligence or misconduct of the Manager, except to the
extent the Manager recovers insurance proceeds with respect to such
matter.
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:
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(a)
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One year from the date of the
commencement of the term hereof. However, this Management
Agreement will be automatically extended for an unlimited number of
successive one year terms at the end of each year unless any party gives
sixty (60) days’ written notice to the other parties of its intention to
terminate this Management
Agreement;
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(b)
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Immediately upon the occurrence
of any of the
following:
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(i) A
decree or order is rendered by a court having jurisdiction (A) adjudging the
Manager as bankrupt or insolvent, (B) approving as properly filed a petition
seeking reorganization, readjustment, arrangement, composition or similar relief
for the Manager under the federal bankruptcy laws or any similar applicable law
or practice, or (C) appointing a receiver, liquidator, trustee or assignee in
bankruptcy or insolvency of the Manager or a substantial part of the Manager’s
assets, or for the winding up or liquidation of its affairs, or
(ii) The
Manager (A) voluntarily institutes proceedings to be adjudicated bankrupt or
insolvent, (B) consents to the filing of a bankruptcy proceeding against it, (C)
files a petition, 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, liquidator, trustee or assignee in bankruptcy or insolvency for it or
for a substantial part of its assets, (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 the
Owner, or (G) takes corporate or other action in furtherance of any of the
aforesaid purposes; and
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(c)
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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.
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Upon
termination, the obligations of the parties hereto shall cease; provided, however; that the
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
to the Manager hereunder up to the date of such termination; provided, further, however; that if this
Management Agreement terminates pursuant to clauses (b) or (c) of this Section 6.1, the
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, the Manager shall have the following duties:
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(a)
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The Manager shall deliver to the
Owner, or its designee, all books and records with respect to the
Properties.
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(b)
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The Manager shall transfer and
assign to the 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 the 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 the Owner, or its designee, regarding the operation, maintenance
and leasing of the
Properties.
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(c)
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The Manager shall render to the
Owner an accounting of all funds of the Owner in its possession and shall
deliver to the Owner a statement of Management Fees claimed to be due the
Manager and shall cause funds of the Owner held by the Manager relating to
the Properties to be paid to the Owner or its
designee.
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(d)
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The Manager shall cooperate with
the Owner to provide an orderly transition of the Manager’s duties
hereunder.
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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.
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To
the Owner:
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Xxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxx X. Xxxxxx, President
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with
a copy to:
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American
Realty Capital Operating Partnership II, L.P.
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000
Xxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxx X. Xxxxxx
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with
a copy to:
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Proskauer
Rose LLP
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0000
Xxxxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxxx X. Xxxx, Esq.
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To
the Manager:
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American
Realty Capital Properties II, LLC
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000
Xxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxx X. Xxxxxx, Chief Operating Officer
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with
a copy to:
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Proskauer
Rose LLP
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0000
Xxxxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxxx X. Xxxx, Esq.
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7.2 Governing
Law. This Management Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law thereof.
7.3 Assignment. Except
as permitted in 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 the Owner without the written consent of the Manager, except
to a Person 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
Owner.
7.4 No
Waiver. Neither the failure nor any delay on the part 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.
7.5 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.
7.6 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 (including by facsimile transmission) with
counterpart signature pages or in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same
instrument.
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.
7.9 Disputes. If
there shall be a dispute between the Owner and the 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 the
Manager. The obligations of the Manager pursuant to the terms
and provisions of this Management Agreement shall not be construed to preclude
the 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 the Owner.
7.11 Independent
Contractor. The Manager and the Owner shall not be construed
as joint venturers or partners of each other pursuant to this Management
Agreement, and neither party shall have the power to bind or obligate the other
except as set forth herein. In all respects, the status of the
Manager to the Owner under this Management Agreement is that of an independent
contractor.
7.12 Pronouns and
Plurals. Whenever the context may require, any pronoun used in
this Management Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Management Agreement as of the
date first above written.
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By:
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Name:
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Title:
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AMERICAN
REALTY CAPITAL OPERATING
PARTNERSHIP
II, L.P.
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By:
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its
General Partner
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By:
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Name:
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Title:
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AMERICAN
REALTY CAPITAL PROPERTIES II,
LLC
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By:
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American
Realty Capital Trust II Special Limited
Partner,
LLC
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its
Member
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By:
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American
Realty Capital II, LLC
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its
Managing Member
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By:
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Name:
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Title:
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