EXHIBIT 10.14
NORTHWEST PLAZA
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MANAGEMENT AGREEMENT
BETWEEN
NORTHWEST PLAZA LLC,
AS OWNER,
AND
WESTFIELD MANAGEMENT COMPANY,
AS MANAGER.
DATED AS OF DECEMBER 16, 1997
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MANAGEMENT AGREEMENT
PAGE
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TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINITIONS .................................... 1
ARTICLE II APPOINTMENT ............................................ 11
ARTICLE III MANAGER'S DUTIES ....................................... 12
A. Operating Standard; Duties .......................... 12
B. Independent Contractor; Employees ................... 14
C. Compliance with Requirements ........................ 14
D. Implementation of Annual Plan ....................... 15
E. Property Manager .................................... 15
F. No Default .......................................... 15
X. Xxxxxx .............................................. 16
ARTICLE IV LEASING THE PROPERTY ................................... 17
A. Leasing Obligations ................................. 17
B. Brokers ............................................. 18
C. Temporary Leases .................................... 19
D. Small Shop Leases ................................... 19
E. Large Shop Leases and Nonconforming Small Shop
and Temporary Leases ................................ 19
F. Anchor Leases ....................................... 19
G. Leasing Fee ......................................... 20
H. Occupant Improvements ............................... 20
ARTICLE V TENANT RELATIONS ....................................... 20
A. Reasonable Efforts .................................. 20
B. Procedures .......................................... 20
C. Enforcement of Leases ............................... 20
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ARTICLE VI RECEIPTS ............................................... 21
A. Cash Receipts ....................................... 21
B. Security Deposit Account ............................ 21
ARTICLE VII ANNUAL PLAN ............................................ 21
A. Initial Annual Plan ................................. 21
B. Submission of Annual Plans .......................... 21
C. Owner's Approval .................................... 22
D. Miscellaneous Provisions ............................ 23
ARTICLE VIII DISBURSEMENTS .......................................... 24
A. Payment of Operating Expenses ....................... 24
B. Checks .............................................. 24
ARTICLE IX ADVANCES FOR OPERATING EXPENSES ........................ 24
A. Notification ........................................ 24
B. Owner's Advances .................................... 25
C. Indemnification ..................................... 25
ARTICLE X FIDELITY INSURANCE COVERAGE ............................ 26
ARTICLE XI MAINTENANCE OF THE PROPERTY ............................ 26
A. Standard ............................................ 26
B. Supplies and Equipment .............................. 27
C. Enforcement of Contracts ............................ 27
D. Emergencies ......................................... 27
ARTICLE XII RECORDS AND REPORTS .................................... 27
A. Monthly Reports ..................................... 27
B. Financial Statements ................................ 29
C. Records ............................................. 31
D. Production of Records and Information ............... 32
E. Tax Returns ......................................... 33
F. General Qualifications .............................. 33
ARTICLE XIII COSTS AND EXPENSES - COMPENSATION ...................... 34
A. Management Fee ...................................... 34
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B. Expense Reimbursement ............................... 35
C. Leasing ............................................. 35
ARTICLE XIV INSURANCE .............................................. 36
ARTICLE XV ALTERATIONS ............................................ 36
ARTICLE XVI TERMINATION ............................................ 36
A. Term ................................................ 36
B. Non-Curable Terminating Events ...................... 36
C. Curable Defaults .................................... 38
D. Manager's Rights and Obligations on Termination ..... 39
ARTICLE XVII DELIVERY OF DOCUMENTS AND NOTICES ...................... 40
ARTICLE XVIII MISCELLANEOUS PROVISIONS ............................... 41
A. Law to Apply ........................................ 41
B. Incorporation by Reference .......................... 41
C. Section Headings and References ..................... 41
D. Terms ............................................... 00
X. Xxxxxx .............................................. 41
F. Severability ........................................ 42
G. Counterparts ........................................ 42
H. Time ................................................ 42
I. Incorporation of Prior Agreements ................... 42
J. Further Assurances .................................. 42
K. Attorneys' Fees ..................................... 42
L. Personal Agreement .................................. 42
M. No Partnership ...................................... 43
N. Amendments .......................................... 43
O. Indemnities ......................................... 43
P. Object of Agreement ................................. 44
Q. Owner's Lenders and/or Purchasers ................... 44
R. Confidentiality ..................................... 44
EXHIBITS
A - Other Management Agreements
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THIS MANAGEMENT AGREEMENT ("Agreement") is made and entered into as
of the 16th day of December, 1997 by and between NORTHWEST PLAZA LLC, a
Delaware limited liability company ("Owner"), and WESTFIELD MANAGEMENT
COMPANY ("Manager"), a Delaware partnership.
W I T N E S E T H:
WHEREAS, Owner is the owner of that certain shopping center located
in St. Xxx, Missouri, and commonly known as Northwest Plaza; and
WHEREAS, Owner and Manager desire to enter into this Agreement to
appoint Manager to manage the Property (as defined below), it being the
understanding that the object of this Agreement is the provision of property
management and leasing services by Manager to Owner, upon all of the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings respectively set forth in this Article I:
"ADVISOR" means Westfield U.S. Advisory, L.P., a Delaware limited
partnership, and its permitted successors and assigns under the Advisory
Agreement.
"ADVISORY AGREEMENT" means that certain Advisory Agreement, dated
as of July 1, 1996, between Westfield America, Inc. (formerly known as
CenterMark Properties, Inc.) and Advisor, as the same may be amended from
time to time.
"AFFILIATE" means, with respect to any Person (the "SUBJECT
PERSON"), any other Person controlling, controlled by or under common control
with the Subject Person. As used in this definition of "AFFILIATE," the term
"CONTROL" means, with respect to any Person, the right to the exercise,
directly or indirectly, of 50% or more of the voting rights attributable to
such Person.
"ANCHOR LEASE" means a Lease for an Anchor Tenant.
"ANCHOR TENANT" means an Occupant that is a department store having
not less than seventy-five thousand (75,000) square feet of usable space at
the Property.
"ANNUAL PLAN" means the plan for the operation, leasing,
maintenance and improvement of the Property, including, without limitation,
the Operating Budget, prepared by Manager and approved by Owner as provided
herein for each Fiscal Year.
"BANKRUPTCY" of any Person means the occurrence of any of the
following events:
(i) if such Person shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
for itself under the present or any future Federal bankruptcy act or any
other present or future applicable Federal, state or other statute or
law relating to bankruptcy, insolvency, or other relief for debtors, or
shall seek or consent to the appointment of any trustee, receiver,
conservator or liquidator of such Person of all, or substantially all,
of its property; or
(ii) if a court of competent jurisdiction shall enter an
order, judgment or decree approving a petition filed against such Person
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any
future Federal bankruptcy act, or any other present or future Federal,
state or other statute or law relating to bankruptcy, insolvency, or
other relief for debtors, and such order, judgment or decree shall
remain unvacated and unstayed for a period of ninety (90) days from the
date of entry thereof, or any trustee, receiver, conservator or
liquidator of such Person or of all or substantially all of its property
shall be appointed without the consent of such Person and such
appointment shall remain unvacated and unstayed for a period of ninety
(90) days, or if such Person shall file an answer admitting the material
allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding; or
(iii) if such Person shall admit in writing its inability
to pay its debts as they mature; or
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(iv) if such Person shall make a general assignment
for the benefit of creditors or take any other similar action for the
protection or benefit of creditors; or
(v) if any assets of such Person are attached, seized or
subjected to a garnishment or other action by a creditor of such Person
seeking to realize upon a judgment against such Person, and such
attachment, seizure, garnishment or other action is not vacated, stayed
or otherwise resolved within ninety (90) days thereafter.
"BUSINESS DAY" means a day which is not a Saturday, Sunday or
legally recognized public holiday in the United States.
"COMMON AREAS" means all those parts of the Property which are not
exclusively used or intended for the exclusive use of any particular Occupant.
Common Areas shall include, without limitation, the following areas within
the Property: parking areas and facilities, traffic control and information
signs and equipment, roadways, pedestrian sidewalks, public transportation
loading and unloading facilities not devoted to a single Occupant, truckways,
delivery areas, landscaped areas, community rooms, office facilities,
Property Manager's office, elevators, escalators, the enclosed mall,
including space occupied by carts or kiosks, roof, skylights, beams, stairs
and ramps not contained within any Occupant's floor area, public restrooms
and comfort stations, service areas, service and fire exit corridors and
passageways, those areas within the Property and adjacent to the Property
containing signs, pylons or structures advertising the Property, and other
areas, amenities, facilities and improvements provided by Owner for the
convenience and use of Owner, the Occupants and their respective
concessionaires, agents, employees, customers, invitees and other licensees.
"DEVELOPER" means Westfield Corporation, Inc., any entity wholly
owned by Westfield Corporation, Inc., and the permitted successors and
assigns of Westfield Corporation, Inc. or any entity wholly owned by
Westfield Corporation, Inc., under the Development Framework Agreement or any
Development Agreement and Leasing Agreement.
"DEVELOPMENT AGREEMENT" means any Design, Development and
Construction Agreement entered into between Westfield America, Inc. (formerly
known as CenterMark Properties, Inc.) or its Affiliate and Developer in
accordance with the terms of the Development Framework Agreement, as the same
may be amended from time to time.
"DEVELOPMENT FRAMEWORK AGREEMENT" means that certain Master
Development Framework Agreement, dated as July 1, 1996, between Westfield
America, Inc. (formerly known as CenterMark Properties, Inc.) and Developer,
as the same may be amended from time to time.
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"DISCRETIONARY EXPENSES" means all Operating Expenses that are not
Non-Discretionary Expenses.
"EMERGENCY" means an event which, in Manager's reasonable
judgment, requires action to be taken prior to the time that approval could
be obtained from Owner (as reasonably determined by Manager) in order to
comply with Legal Requirements or Insurance Requirements or to preserve the
Property, or for the safety of any employees, Occupants, customers or
invitees of the Property, or to avoid the suspension of any services
necessary to, or required by, the Occupants, customers or invitees thereof.
"FISCAL YEAR" means the calendar year.
"GROSS INCOME" in respect of a particular period means all minimum,
fixed and percentage rents and all other receipts, revenues, proceeds and
other monies received by Owner, or by Agent on behalf of Owner, from or in
connection with the operation of the Property in respect of such period,
directly or indirectly and from any source whatsoever including, without
limitation, all payments made to Owner by Occupants including, but not
limited to (i) minimum, fixed and percentage rent (including proceeds from
any litigation wherein damages equivalent to or based upon rent from a
defaulted tenant are recovered, exclusive of interest), (ii) Common Area
maintenance charges, (iii) contributions for personal and real property taxes
and sales taxes, insurance premiums and deductibles, utilities, heating,
ventilating and air conditioning, domestic water and waste handling,
sprinkler charges, Manager's administrative costs and any other expenses of
the Property for the payment of which Occupants are obligated to contribute
pursuant to their respective Leases, (iv) security deposits which have been
applied to rent, and (v) all proceeds from loss of rents insurance maintained
by Owner relating to the Property.
"INDEX" with respect to any applicable calculation that is provided
for herein, for each particular year or period in question, means the "All
Items" portion of the Consumer Price Index for All Urban Consumers: U.S. City
Average (1982-84 = 100), issued and published by the Bureau of Labor
Statistics of the United States Department of Labor. If the Index ceases to
use the 1982-84 average equaling 100 as the basis of calculation, or if a
change is made in the terms or number of items contained in the Index, or if
the Index is altered, modified, converted or revised in any way, then the
Index shall be determined by reference to the index designated as the
successor to the prior Index or other substitute index published by the
government of the United States and new index numbers shall be substituted for
the old index numbers in making the calculations, as may be appropriate. If at
any time the Bureau of Labor Statistics shall no longer publish such Index,
then any successor or substitute index to the Index published by said Bureau
or other governmental agency of the United States, and similarly adjusted as
aforesaid, shall be used. If such a successor or substitute index is not
available or may not lawfully be used for the purposes herein stated, a
reliable governmental or other non-partisan publication selected
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by Manager and reasonably acceptable to Owner shall be used in evaluating the
information theretofore used in determining the Index.
"INSURANCE REQUIREMENTS" means the requirements of any insurer or
insurance carrier, to the extent that such requirements are applicable to the
Property, or any portion thereof, the use or manner of use of the same, or to
Owner in its capacity as owner of the Property.
"LAND" means that certain parcel or parcels of real property on
which Northwest Plaza is located.
"LARGE SHOP LEASE" means any Lease which is not an Anchor Lease, a
Small Shop Lease or a Temporary Lease.
"LEASE" means any lease, sublease, license to occupy or other right
of occupancy, use or possession of the Property or any part of the Property,
entered into or granted by or on behalf of Owner or by or on behalf of
Owner's predecessors in title, whether temporarily or for a fixed or periodic
term, whether or not recorded, and whether oral or written including, without
limitation, any storage license, cart or kiosk lease or license, and any
other specialty lease or license. "LEASES" means each and every Lease in
effect at the applicable time, collectively.
"LEASING AGREEMENT" means any Leasing Agreement entered into
between Westfield America, Inc. (formerly known as CenterMark Properties,
Inc.) or its Affiliate and Developer in accordance with the terms of the
Development Framework Agreement, as the same may be amended from time to time.
"LEASING GUIDELINES" means the annual leasing guidelines for the
Property proposed by Manager and approved by Owner, which approval will not
be unreasonably withheld by Owner, as an element of each Annual Plan, as
such guidelines may be amended from time to time in accordance with the terms
hereof.
"LEGAL REQUIREMENTS" means all laws, statutes, codes, ordinances,
orders, regulations, judgments, decrees and directions of all federal, state
and local governments and courts and the appropriate agencies, officers,
departments, boards, authorities and commissions thereof, whether now or
hereafter enacted, to the extent that the same are applicable to the use or
operation of the Property or any portion thereof.
"MARKETING FUND" means the media fund or other like fund or
organization established, operated and maintained by Manager in accordance
with the Operating Budget for the advertising, merchandising and promotion of
the Property.
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"NON-DISCRETIONARY EXPENSES" means those Operating Expenses, the
payment and amount of which are not within the discretion of Owner or
Manager, including without limitation utility charges, salaries and benefits
of Property employees, scheduled payments of principal and interest on
indebtedness encumbering the Property, real estate and personal property
taxes and assessments, insurance premiums, amounts due and payable under
service contracts and other agreements entered into in accordance with any
Annual Plan, and Operating Expenses required to be paid by Legal Requirements
or Insurance Requirements.
"OCCUPANTS" means all Persons using or in possession or occupation
of any portion of the Property from time to time under any Lease.
"OPERATING BUDGET" means the annual operating budget for the
Property proposed by Manager and approved by Owner, which approval will not
be unreasonably withheld by Owner, for the relevant Fiscal Year, as the same
may be amended from time to time in accordance with the terms hereof.
"OPERATING EXPENSES" means the total for each relevant period of
the costs and expenses incurred or accrued in respect of the Property by
Owner or by Manager on behalf of Owner in accordance with this Agreement.
Subject to the foregoing, Operating Expenses shall include, without
limitation:
(i) all rates, taxes, assessments and impositions
whatsoever (whether assessed, charged or imposed by or under Federal, State
or local Legal Requirements) assessed, charged or imposed in respect of the
Property or Owner in its capacity as owner of the Property, except to the
extent that Owner has elected to appeal the same until such time as such
taxes are paid, including, without limitation, sales taxes paid by Manager
with respect to goods or services benefiting the Property acquired or
provided in accordance with the Operating Budget;
(ii) charges for supply of water, sewerage, gas
electricity and other utilities supplied to the Common Areas, and the
disposal of all garbage and refuse from the Common Areas;
(iii) costs of operating, maintaining, repairing and
cleaning all areas of the Property, including the salary, wages, benefits and
other costs of (x) all on-site employees at the Property employed by Manager
or its Affiliates and (y) all off-site costs which are allocable to the
Property (which shall include home office or regional office operational
employees to the extent such employees perform services specifically related
to the Property), as may be necessary or appropriate for the proper operation
thereof and the performance by Manager of its obligations hereunder, all in
accordance with the Operating Budget;
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(iv) all charges for leasing or licensing, operating,
maintaining and repairing the lighting and HVAC systems, vertical or
horizontal transportation equipment, sanitary, security and fire detection
and fighting equipment and all other equipment, machinery and systems
provided for or to the Property from time to time, in accordance with the
Operating Budget;
(v) the portion of overhead costs incurred by or on
behalf of Manager in performing its duties under this Agreement which (x) are
for the sole benefit of the Property and (y) have been approved by Owner in
the Operating Budget for the applicable Fiscal Year;
(vi) the costs of leasing, maintenance, registration and
other expenses incurred in respect of vehicles used by employees of Manager
or a Related Person of Manager in connection with the performance of services
for the benefit of the Property which are properly incurred in the
performance by Manager of its duties and obligations under this Agreement, in
accordance with the Operating Budget;
(vii) all fees and charges incurred in connection with the
opening, maintenance and operation of any bank accounts operated for the
Property by Manager;
(viii) advertising, marketing and promotional costs for the
Property in accordance with the applicable Operating Budget or which
otherwise have been approved in writing by Owner;
(ix) the fees of attorneys and consultants incurred by
Manager in accordance with the Operating Budget or at the written request of
Owner in connection with the performance by Manager of its duties and
obligations under this Agreement including, without limitation, the
enforcement of all Leases;
(x) all contributions made by Owner or Manager on behalf
of Owner from time to time to the Marketing Fund;
(xi) the payment or reimbursement of the applicable
portion of costs incurred by Owner or by or on behalf of Manager for insurance
and claims management services for the Property in accordance with the
Operating Budget, whether such payment is incurred pursuant to any master
policy covering other properties under the management of Manager of any
Related Person, or otherwise;
(xii) all expenses incurred by Manager in accordance with
the Operating Budget or as otherwise approved in writing by Owner in
connection with equipment provided by or on behalf of the Manager or by
others for the purpose of the operation and maintenance of
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the Property or the applicable portion of such costs relating solely to the
Property including, without limitation, all financing, leasing and other
charges incurred in respect of such equipment and legal and other costs
associated with the arranging thereof;
(xiii) miscellaneous donations made by Manager from time to
time in the course of operations of the Property in accordance with the
Operating Budget or as otherwise approved in writing by Owner;
(xiv) third party audit and accountancy fees incurred in
accordance with the Annual Plan in connection with the preparation of any
accounts or financial statements relating solely to the Property prepared by
or on behalf of Owner for the purpose of providing the financial information
to Owner required by this Agreement and enabling Manager to perform its
obligations under this Agreement;
(xv) all third party costs and expenses incurred by
Manager directly for the benefit of the Property in connection with the lease
or license of space within the Property in accordance with the Operating
Budget or as otherwise approved in writing by Owner, excluding, however,
brokerage or agency fees, commissions or expenses payable to Manager or any
third parties;
(xvi) the Management Fee payable to Manager in accordance
with Article XIII hereof;
(xvii) general expenses associated with the Property
incurred in accordance with the Operating Budget or as otherwise approved in
writing by Owner; and
(xviii) all costs incurred in accordance with the Operating
Budget or as otherwise approved in writing by Owner in connection with (x)
complying with Legal Requirements and Insurance Requirements binding the
Property, binding Owner in its capacity as owner of the Property, or binding
Manager in its capacity as Owner's agent; and (y) enforcing compliance with
Legal Requirements and Insurance Requirements binding Occupants, contractors
or consultants, provided, however, that if any such noncompliance was caused
by Manager's gross negligence, willful misconduct or fraud, any incremental
increase in the cost of enforcing such compliance shall be borne by Manager
and shall not be an Operating Expense;
PROVIDED, HOWEVER, that notwithstanding the foregoing, "OPERATING EXPENSES"
shall exclude:
(a) income taxes, capital gains tax and any other taxes
imposed on Owner, Manager or Occupants in their capacities as individual
taxpayers;
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(b) the fees of consultants an other costs proven by Owner to
have been incurred as a direct result of Manager's gross negligence, willful
misconduct or fraud; and
(c) premiums and other costs payable by Manager for fidelity
bond insurance.
"OTHER MANAGEMENT AGREEMENTS" mean the management agreements listed
on Exhibit A attached hereto between Manager and certain Affiliates of Owner,
and any new management agreements entered into between Manager and Owner in
accordance with that certain letter agreement, dated as of the date hereof,
between Manager and Westfield America, Inc. (formerly known as CenterMark
Properties, Inc.) ("WEA").
"OWNER" means Northwest Plaza LLC, a Delaware limited liability
company, and its permitted successors or assigns hereunder. For purposes of
granting any approvals or consents under this Agreement with respect to the
operation, leasing or maintenance of the Property, Owner shall act through
the Board of Directors or through an executive committee of the Board of
Directors of the general partner of the Owner.
"OWNER'S ACCOUNT" means the account established by Owner into which
Manager is to deposit all amounts collected by Manager under Section VI.A.
"PERSON" means an individual, partnership, joint venture,
corporation, trust, unincorporated association or other entity.
"PRIME RATE" means the rate of interest announced by Xxxxxx
Guaranty Trust Company of New York or its successors, from time to time in
its New York City office as its "prime" rate, or if no such rate is
announced, then the rate charged to its best corporate customers for demand
loans.
"PROPERTY" means the Land together with all of the improvements now
or hereafter erected thereon (including, without limitation, buildings,
parking structures, paved areas, landscaped areas, landscaping, sidewalks,
bridges and tunnels) commonly known as Northwest Plaza as it may be expanded
or renovated from time to time hereafter, together with all fixtures,
machinery, equipment, and other property located thereon belonging to or
leased or licensed by or for Owner and used in connection with the operation
thereof.
"RELATED PERSON" means, with respect to any Person (the "SUBJECT
PERSON"), any other Person having any of the following relationships with the
Subject Person:
(i) any Affiliate of the Subject Person;
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(ii) any other Person owning directly or indirectly more
than fifteen percent (15%) of the issued and outstanding stock of, or more than
a fifteen percent (15%) beneficial or voting interest in, the Subject Person; or
(iii) any other Person more than fifteen percent (15%) of the
issued and outstanding stock of which, or more than a fifteen percent (15%)
beneficial or voting interest in which, is owned directly or indirectly by
the Subject Person;
"SMALL SHOP LEASE" means any Lease which both (i) covers a gross
leasable area at the Property which is twenty thousand (20,000) square feet or
less, and (ii) has a term, including renewal options (if any), less than or
equal to ten (10) years; provided, however that the term "Small Shop Lease"
expressly excludes all Temporary Leases.
"STANDARD FORM OF SHOP LEASE" means the standard form leasing
documents for Small Shop Leases and Large Shop Leases at the Property as
approved by Owner, which approval will not be unreasonably withheld by Owner,
as the same may be amended or restated from time to time in accordance with
the provisions of this Agreement.
"TEMPORARY LEASE" means any Lease of a temporary or seasonal nature,
having a term, including renewal options (if any) of less than one (1) year,
including without limitation, short-term concessions or license agreements and
cart or kiosk leases or licenses for less than one year.
ARTICLE II
APPOINTMENT
Owner hereby appoints Manager to rent, lease, operate, manage and
direct the operation of the Property subject to the terms and conditions
hereinafter set forth. The appointment of Manager shall be exclusive to
Manager except to the extent that Manager otherwise agrees from time to time
in Manager's sole and absolute discretion. Manager agrees that during the
term of this Agreement it will not act as the property manager for any
regional shopping center which directly competes with the Property and which
is within the primary market area of the Property (a "Competing Mall"),
PROVIDED that the foregoing restriction shall not be deemed to be violated if
Manager shall acquire, either directly or indirectly, all or substantially
all of the assets of, or an interest in, an entity which is engaged in the
property management business and which manages, among other properties, a
regional shopping center which is a Competing Mall.
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Owner and Manager acknowledge that Owner has engaged Developer as the
exclusive developer for the Property pursuant to the Development Framework
Agreement with respect to any expansion, redevelopment or refurbishment of the
Property (any such expansion, redevelopment or refurbishment being hereinafter
referred to as a "Project"). Owner and Manager further acknowledge that to the
extent Developer is providing leasing services with respect to the initial
leasing of any portion of the Project pursuant to a Leasing Agreement, Manager
shall have no responsibility hereunder for the initial leasing of such portion
of the Project.
ARTICLE III
MANAGER'S DUTIES
A. OPERATING STANDARD; DUTIES. Manager shall exercise its powers and
perform its duties and obligations under this Agreement in a diligent manner,
and shall exercise professional competence in managing the Property at the
prevailing national standard of industry practice for properties of a similar
type and quality as the Property. Manager represents and warrants that it,
together with its Affiliates, has the skill and experience necessary to perform
its obligations in accordance with the terms of this Agreement. Owner
acknowledges that the prior management of the Property by Manager has met or
exceeded the standard set forth above. Without limiting the generality of the
foregoing, Manager shall perform the following duties, subject to the
limitations imposed by the Annual Plan and all other provisions of this
Agreement:
(1) The billing and collection of all amounts payable to Owner
by Occupants under the Leases and other amounts included in Gross Income and the
prompt deposit of all such amounts received by Manager in the Owner's Account;
(2) To the extent funds have been made available by Owner
through deposits into the Owner's Account, the payment of all Operating Expenses
and capital expenses of the Property;
(3) Subject to the Leasing Guidelines, the negotiation of
Leases, the administration and enforcement by commercially reasonable methods of
all Leases and all other service, maintenance and other agreements or contracts
made by or on behalf of Owner for the Property, and the performance of the
obligations specified in Article IV relating to the leasing of the Property;
(4) The selection, engagement, employment, payment,
supervision, direction and discharge of all Property employees reasonably
necessary or appropriate for the
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proper, safe and economic operation and maintenance of the Property, in number
and at wages in accordance with the Operating Budget, the carrying of Worker's
Compensation Insurance (and, when required by law, compulsory Non-Occupational
Disability Insurance) covering such employees, and the use of reasonable care in
the selection, supervision and discharge of such employees. Manager shall use
its diligent, good faith efforts to comply with all laws and regulations and
collective bargaining agreements, if any, affecting such employment. All persons
employed in connection with the operation and maintenance of the Property shall
be employees of Manager or its Affiliates or employees of contractors providing
contract services to the Property;
(5) The cleaning, maintenance, servicing and repair
of the Property (whether by employees of Manager or through supervision of
contractors), including all machinery, equipment and other items whether leased
or provided by Manager or provided by Owner for the operation of the Property,
in accordance with Article XI;
(6) The management and administration of the Marketing
Fund and the advertising, merchandising and promotion of the Property and the
Occupants' respective businesses in accordance with the Annual Plan and this
Agreement or as otherwise approved in writing by Owner;
(7) The provision to Owner of the financial, accounting and
reporting services relating to the Property specified in Article XII;
(8) The making of recommendations concerning the Property
(including, without limitation, as to the tenant mix, maintenance, refurbishment
of the Property and structural alterations or improvements to the Property) as
Owner may from time to time reasonably require;
(9) Preparing, maintaining and providing (at the
request of Owner) copies to Owner of all depreciation schedules for the
machinery, equipment and other property located at the Property;
(10) Notifying Owner in its quarterly report to the Board of
Directors of Owner of any material tax assessments, reassessments, or other
impositions relating to the Property or to Owner in its capacity as owner of the
Property received by or on behalf of Manager and the handling of any relevant
appeals at the request and cost of Owner;
(11) Attending, by telephone or, at the request of Owner, in
person, such meetings with any one or more of the representatives of Owner as
Owner may reasonably require (provided Manager receives reasonable notice
thereof) for the purposes of delivering Annual Plans, reports, financial
statements and other documents, making such recommendations or
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discussing such aspects of the operation and management of the Property as
Manager is required to provide under this Agreement, provided that this
provision will not be deemed to require Manager to deliver Annual Plans,
reports, financial statements or other documents at times earlier than the times
otherwise set forth herein;
(12) Formulating and, subject to the Annual Plan, implementing
an insurance program for the Property;
(13) The management, administration and coordination of all
design and construction associated with the maintenance, repair and/or leasing
of the Property including all tenant improvements to be constructed at the
Property, but excluding all initial construction and tenant improvements
associated with any expansion, redevelopment or refurbishment of the Property
(which will be covered in a separate Development Agreement), provided, however,
that Manager shall not be required to perform any actual design or construction
work, and provided further that with respect to tenant improvements, Manager
shall only be responsible for the approval, supervision and coordination of the
design of any Occupant's store to the extent contemplated in such Occupant's
Lease, including without limitation the design of such Occupant's store front
and the specifications of such Occupant's equipment;
(14) Keeping Owner reasonably informed through reports at
regular quarterly meetings of the Board of Directors of Owner with respect to
any other material matters relating to the management, leasing and operation of
the Property; and
(15) Performing all additional duties which Owner may reasonably
require Manager to perform from time to time which are (i) consistent with the
provisions of this Agreement, and (ii) generally performed by property managers
of properties of the type and quality as the Property.
B. INDEPENDENT CONTRACTOR; EMPLOYEES. In performing its duties
hereunder, Manager at all times shall be acting as an independent contractor
contracted by Owner (except where acting as agent for Owner as specifically
required pursuant to this Agreement) and all contractors or consultants engaged
or supervised by Manager shall be independent contractors or employees of
Manager. All Property employees shall be employed by Manager or its Affiliates
and Manager shall oversee such Property employees in the discharge of their
duties.
C. COMPLIANCE WITH REQUIREMENTS. Subject to the Annual Plan or as
otherwise approved or authorized in writing by Owner and Manager, Manager shall
manage, maintain, lease and operate the Property in compliance with (1) all
Legal Requirements concerning the Property; (2) the provisions of all mortgages,
notes, deeds of trust and any other instruments encumbering the Property,
provided that Manager shall not be obligated to comply
13
with the terms of any amendments or modifications of such mortgages, notes or
deeds of trust unless Owner has delivered copies to Manager of any of such
amendments or modifications which impose new or additional requirements or
restrictions on Manager or the leasing or operation of the Property; (3) all
Insurance Requirements; (4) the Leases; and (5) all covenants binding Manager
under agreements or arrangements made with third parties including, without
limitation, contractors, consultants and the lessors of any leased equipment
or machinery, and, to the extent it is in Manager's legal capacity to do so,
Manager shall perform all obligations binding Owner under agreements or
arrangements made with third parties. If Manager ascertains that the
Property is not in compliance with any of the foregoing items and such
compliance is not contemplated by the Annual Plan, Manager shall notify Owner
in writing, and Owner shall instruct Manager in writing as to how to proceed.
To the extent that Manager complies with Owner's instructions relating to
Owner's, Manager's or the Property's compliance or non-compliance with any of
the foregoing items, Manager shall in no event be deemed in breach of any
provision of this Agreement, and Manager shall be fully indemnified under the
provisions of Section XVIII.O(2)
Notwithstanding the foregoing, Manager, with the prior written
approval of Owner, shall be entitled to contest in good faith any Legal
Requirement or Insurance Requirement provided that such contest is not
reasonably expected to result in the cancellation or interruption of insurance
coverage for the Property or subject Owner to any civil or criminal liability or
fines and is not reasonably expected to result in a breach, violation or
termination of any mortgage, Lease or other material contract or agreement
encumbering or relating to the Property. Manager's good faith noncompliance
with the applicable Legal Requirement or Insurance Requirement shall not be
deemed a default under this Agreement provided that Manager prosecutes such
contest in good faith and with due diligence to a final determination.
D. IMPLEMENTATION OF ANNUAL PLAN. Manager shall use its diligent good
faith efforts to implement the terms of each approved Annual Plan and shall
exercise control over and shall expend or otherwise transfer rents and other
sums received on behalf of Owner in accordance with the terms hereof. Manager
shall not take any actions which are inconsistent with the Annual Plan and are
not otherwise authorized in writing by Owner, PROVIDED that Manager may exceed
the annual Operating Budget with respect to the payment of Operating Expenses as
set forth in Article VIII.A.
E. PROPERTY MANAGER. Manager shall retain the services of an
experienced project manager (as an employee of Manager) (the "PROPERTY MANAGER")
at Owner's cost, to perform the on-site management functions specified herein.
F. NO DEFAULT. Notwithstanding anything to the contrary in this
Agreement, except to the extent that the payment of additional monies is proven
by Owner to have been
14
required as a direct result of Manager's gross negligence, willful misconduct or
fraud Manager shall not be required to expend money in excess of that contained
in the Owner's Account or otherwise made available by Owner to be expended by
Manager hereunder. Manager will not be in breach or default of any obligation
under this Agreement if, upon receipt of a timely written request from Manager,
Owner fails to advance funds as provided in Article IX below, fails to make a
decision, recommendation or request, fails to give a direction, approval or
consent, fails to execute any notice or document required by Manager, or fails
to make a demand or other communication in any such case necessary for the
performance by Manager of that obligation under this Agreement.
X. XXXXXX. For the purposes of carrying out its duties referred to in
this Agreement, Manager is authorized from time to time during the continuance
of this Agreement:
(1) To enter upon the Property for the purposes of carrying out
the provisions of this Agreement;
(2) To negotiate Leases in Owner's name and implement rent
escalations, the terms of such Leases and rent escalations to be in accordance
with the Leasing Guidelines, PROVIDED that Manager is authorized to enter into
Leases having rent terms which do not vary by more than ten percent (10%) from
the terms of the Leasing Guidelines (except for Temporary Leases which will
not be covered by the Leasing Guidelines and may be negotiated by Manager on the
terms set forth in Article IV.C) and, to the extent it is in Manager's legal
capacity and commercially reasonable to do so, on Owner's behalf to fully
perform and exercise the rights of Owner under any such Leases;
(3) To execute in Owner's name all Temporary Leases, all Small
Shop Leases, all Large Shop Leases and all licenses or other occupancy
agreements negotiated for Common Areas, provided that Manager shall have
obtained Owner's prior written consent with respect to those Leases and
agreements requiring such consent pursuant to Article IV, and, for the purpose
only of such execution, Owner hereby appoints Manager as Owner's
attorney-in-fact;
(4) As agent for Owner and without need for consent of Owner,
to institute, prosecute, defend, settle or otherwise deal with (i) any claim or
legal proceeding against Owner which is not covered by Owner's insurance or
Owner's self-insured retention, but is likely to be settled or otherwise
resolved at a total cost to Owner (excluding attorneys' fees and expenses but
including payments made to any claimant or potential claimant) that is equal to
or less than Fifty Thousand Dollars ($50,000), subject to annual increase on
each January 1 commencing on January 1, 1997 based on the percentage increase in
the Index during the preceding Fiscal Year, (ii) any collection or enforcement
action or eviction proceeding with respect to any Lease other than an Anchor
Lease or a Large Shop Lease, and (iii) any claim, lawsuit or proceeding against
15
Owner which is (A) covered by the Owner's self insured retention, to the
extent that payments made from such self-insured retention are recoverable
from Occupants, and in the event that the entire amount of such self-insured
retention set forth in the Operating Budget for any Fiscal Year has been
exhausted, only if such claim, lawsuit or proceeding is settled or resolved
at a cost to Owner (excluding attorneys' fees) of less than Fifty Thousand
Dollars ($50,000), subject to annual increase on each January 1 commencing on
January 1, 1997 based on the percentage increase in the Index during the
preceding Fiscal Year, or (B) covered by insurance and is being defended,
pursued or settled by Owner's insurance company or adjuster; and, subject to
the prior written consent of Owner, to commence, prosecute or defend or
otherwise deal with any other legal or other action relating to any other
matter concerning the Property;
(5) As agent for Owner, to accept and receive all Gross
Income for deposit into the Owner's Account;
(6) To advertise, merchandise and promote the Property in
accordance with the Annual Plan or as otherwise approved in writing by Owner;
(7) To select, retain, engage, employ, replace, supervise,
dismiss, or otherwise deal with any contractors or consultants as may be
reasonably necessary or desirable for the efficient management and operation
of the Property by Manager, PROVIDED that such contractor is not a Related
Person of Manager and the applicable contract or agreement shall not be for a
term longer than one (1) year unless such contract may be terminated on no
more than thirty (30) days' notice without charge or penalty; and
(8) Subject to the Annual Plan or as otherwise authorized or
approved in writing by Owner, to do and perform in respect of the Property
all things reasonably necessary or appropriate on the part of Manager in
compliance with the covenants and obligations of Manager herein contained to
fully and effectively manage the Property and otherwise perform its
obligations hereunder.
ARTICLE IV
LEASING THE PROPERTY
A. LEASING OBLIGATIONS. Manager shall use its diligent, good
faith efforts during the term of this Agreement to lease the Property in
accordance with the Annual Plan. In connection therewith, Manager shall:
16
(1) assist in the preparation of and make recommendations to
Owner as to variations to the Standard Form of Shop Lease to be used at the
Property from time to time;
(2) use the Standard Form of Shop Lease as the basis for the
negotiation of all Small Shop Leases and Large Shop Leases;
(3) subject to the terms of the Leasing Guidelines,
negotiate the terms and conditions of all Leases, including, without
limitation, all extensions, renewals, amendments and modifications thereto,
in accordance with the Annual Plan, with such immaterial variances from the
Standard Form of Shop Lease as may be reasonably required, unless otherwise
authorized in writing by Owner; PROVIDED that Manager may negotiate terms and
conditions for Leases which vary from the rent terms set forth in the
Leasing Guidelines by up to ten percent (10%);
(4) arrange for the execution of Leases and all amendments
and modifications thereto by all parties thereto, and distribute copies
thereof in accordance with this Agreement;
(5) locate and endeavor to secure, in accordance with the
Annual Plan, suitable Occupants for all areas of the Property that may be
vacant from time to time or are to be come vacant in the near future and are
reasonably available for occupation or use, including, to the extent
applicable, the Common Areas;
(6) review the general suitability of prospective Occupants
and, to the extent Manager may deem it reasonably necessary or appropriate,
seek references from prospective Occupants and conduct such other
investigations as will establish whether or not the prospective Occupant is
capable of performing all obligations which the prospective Occupant would be
required to perform under its Lease;
(7) coordinate the activities of management, leasing, design
and engineering personnel and/or consultants to implement the leasing program
for the Property; and
(8) perform such other leasing activities as may be required
by and consistent with the prevailing national standard for properties of a
similar type and quality as the Property.
B. BROKERS. Manager may engage and cooperate with brokers, as may
be reasonably necessary or appropriate, so as to secure prospective tenants
for the Property. Unless otherwise specifically contemplated under the
Annual Plan or, unless otherwise approved in writing by Owner, Manager shall
be responsible for the payment of any commissions payable
17
in connection with procuring tenants for the Property and Manager does hereby
indemnify and hold Owner harmless from and against any and all loss, cost,
liability or damage (including attorneys' fees and expenses incurred in good
faith and court costs), incurred by Owner in connection with any claim for
leasing commissions in connection with the leasing of the Property after the
date hereof.
C. TEMPORARY LEASES. If the terms and conditions of any Temporary
Lease are consistent with the budget for Temporary Leases (subject to a
variance of up to ten percent (10%) on the rent terms) and are on the
standard form of lease for Temporary Leases (without material modification
thereto) or have otherwise been approved in writing by Owner, Manager is
authorized to execute such Temporary Leases on behalf of Owner, without
seeking Owner's consent thereto. Manager shall deliver a conformed copy of
any such Temporary Lease to Owner promptly after Owner's request therefor.
D. SMALL SHOP LEASES. If the terms and conditions of any Small
Shop Lease are consistent with the Annual Plan and the Leasing Guidelines
(subject to a variance of up to ten percent (10%) on the rent terms) or have
otherwise been approved in writing by Owner, Manager is authorized to execute
such Small Shop Lease on behalf of Owner, without seeking Owner's consent
thereto. Manager shall deliver a conformed copy of each such Small Shop Lease
to Owner within ten (10) Business Days after Manager's execution thereof.
E. LARGE SHOP LEASES AND NONCONFORMING SMALL SHOP AND TEMPORARY
LEASES. Manager shall obtain the written consent of Owner to the terms and
conditions of any Large Shop Lease or any Small Shop or Temporary Lease which
Manager is not authorized to execute on behalf of Owner pursuant to the terms
hereof, by delivering such Lease to Owner together with all reasonably
relevant information. Owner shall grant or deny (with specificity) its
approval of the terms and conditions of any such Lease within ten (10)
Business Days after Owner's receipt of such Lease and relevant information.
In the event that Owner shall fail to notify Manager (by telephone, facsimile
or otherwise) of its approval or rejection within such ten (10) Business Day
period, Owner shall be deemed to have approved such Lease. Upon Owner's
approval or deemed approval of any such Lease, Manager shall be authorized
to execute such Lease on behalf of Owner, and shall deliver a conformed copy
thereof to Owner within ten (10) Business Days after Manager's execution of
such Lease.
F. ANCHOR LEASES. Manager shall obtain the written consent of
Owner to the terms and conditions of any Anchor Lease by delivering such
Anchor Lease to Owner together with all reasonably relevant information.
Owner shall grant or deny (with specificity) its approval of the terms and
conditions of any Anchor Lease within twenty-one (21) days after Owner's
receipt of such Lease and relevant information. Manager will deliver each
fully negotiated and approved Anchor Lease to Owner for Owner's execution
thereof, and provided that the terms of
18
any such Anchor Lease are consistent with the terms approved in writing by
Owner, Owner shall execute any such Anchor Lease within fifteen (15) Business
Days after Owner's receipt thereof.
G. LEASING FEE. Except for any amounts to be reimbursed to Manager in
accordance with the terms hereof, Manager shall be entitled to receive fees and
commissions in connection with the negotiation and execution or administration
of Leases in accordance with Section XIII.C as its sole compensation for the
leasing services contemplated by this Article IV.
H. OCCUPANT IMPROVEMENTS. Manager shall review, approve and
coordinate the design of the Occupants' stores to the extent contemplated in the
Occupants' respective Leases, including without limitation obtaining and
reviewing design drawings for Occupants' store fronts and specifications for
Occupants' equipment, and monitoring the progress of Occupants' construction of
standard tenant improvements at the Property.
ARTICLE V
TENANT RELATIONS
A. REASONABLE EFFORTS. Manager shall exercise its diligent good faith
efforts consistent with Article IV to maintain good tenant relations with
Occupants of the Property in a reasonable manner.
B. PROCEDURES. Manager shall establish procedures for the prompt
receipt, investigation and handling of Occupant requests and complaints, and
shall request that any and all allegations by Occupants of defaults by Owner or
Manager under the Leases be made in writing.
C. ENFORCEMENT OF LEASE. Manager shall establish procedures
consistent with this Agreement for the collection and receipt of rent and all
other charges due Owner under and in accordance with the Leases, including
procedures for advising Occupants of overdue rent. To the extent commercially
reasonable, Manager shall, on behalf of Owner:
(1) subject to the limitations set forth in Section III.G(4),
engage attorneys experienced in the field of landlord-tenant relations to
prosecute defaults under any of the Leases;
(2) take such other action as may be directed by Owner to
enforce the Leases; and
19
(3) hire auditors to audit Occupants in order to collect
applicable sales information, and charge the reasonable costs of such auditors
to the Property.
ARTICLE VI
RECEIPTS
A. CASH RECEIPTS. Except as provided in Section B of this Article,
all rent and other monies with respect to the Property received by Manager from
whatever source (the "CASH RECEIPTS") shall promptly be deposited by Manager
into the Owner's Account.
B. SECURITY DEPOSIT ACCOUNT. Manager shall deposit into a
segregated interest bearing account (hereinafter referred to as the "SECURITY
DEPOSIT ACCOUNT"), prior to the close of business of the third succeeding
Business Day after receipt by Manager, all security deposits. If any Lease
requires the security deposit or any other payment to be in an interest
bearing account, Manager shall so comply. Manager shall hold all security
deposits received in a form other than cash (e.g., letters of credit or
certificates of deposit) in a safe and secure location. Manager shall from
time to time withdraw funds from any Security Deposit Account (and convert
any non-cash security deposits to cash) and deposit the same in the Owner's
Account in accordance with the terms of the Leases. Manager shall not
commingle security deposits with any funds or other property of Manager.
ARTICLE VII
ANNUAL PLAN
A. INITIAL ANNUAL PLAN. Owner and Manager have agreed upon and
adopted an initial Annual Plan for the remainder of the 1997 Fiscal Year.
B. SUBMISSION OF ANNUAL PLANS. At least thirty (30) days prior to
the beginning of each Fiscal Year Manager shall deliver to Owner for its
approval an Annual Plan for the succeeding Fiscal Year which shall
incorporate:
(1) an Operating Budget for that Fiscal Year setting forth,
with reasonable specificity, the estimated Gross Income and Operating
Expenses for the Property and showing ongoing expenses and extraordinary
expenses and the approximate dates upon which funds therefor will be needed;
20
(2) a capital expenditures budget for that Fiscal Year;
(3) the projected timing and estimated amount(s) of any
required capital advances by Owner for that Fiscal Year;
(4) Manager's marketing and leasing plan for the Property for
the following Fiscal Year, and any modifications to the Leasing Guidelines, if
any, proposed by Manager;
(5) the type and coverage levels and premiums of all insurance
for the Property to be maintained during the subsequent Fiscal Year if not
covered by Owner's or its Affiliate's corporate leasing program;
(6) a summary of all agreements relating to the Property
between Manager and any Related Persons of Manager; and
(7) such other matters as Owner may reasonably require to be
included in such Annual Plan from time to time.
The Annual Plan shall be in form and substance reasonably acceptable to Owner,
and shall be submitted together with a report containing recommendations for the
subsequent Fiscal Year in relation to any matters deemed appropriate by Manager
or reasonably requested by Owner.
C. OWNER'S APPROVAL. Owner shall approve or disapprove Manager's
proposed Annual Plan within thirty (30) days after receipt thereof. Owner shall
specify the reasons for any disapproval. Owner's failure to respond within such
thirty (30)-day period shall be deemed to be an approval of the Annual Plan as
submitted. Upon Manager's timely receipt from Owner of a notice of disapproval
or a request for supplemental information regarding the proposed Annual Plan or
any component thereof, Manager shall diligently undertake to modify the
disapproved matters or to provide Owner with such requested supplemental
information. Owner and Manager shall act in good faith in order to agree upon
each Annual Plan and provide for the continued orderly operation of the
Property. Pending the resolution of any such dispute, the submitted Annual Plan
shall control with the sole exception of those specific items not approved by
Owner, and the Annual Plan for the preceding Fiscal Year (exclusive of any line
items relating to expenditures for specified capital works which shall be
established by Owner) shall control with respect to those specific items not
approved by Owner; provided, however, that unless Owner and Manager otherwise
agree:
21
(1) individual unapproved line items may be increased to
such amount as may be necessary for Non-Discretionary Expenses and any
Operating Expenses incurred in connection with any Emergency;
(2) any other unapproved line item relating to Operating
Expenses payable to third parties who are not Related Persons to Manager, or
pursuant to existing contracts with third parties who are Related Persons to
Manager which are known at that time to have increased or decreased in cost
shall be increased or decreased, as applicable, to the then current level as
of the end of such prior Fiscal Year;
(3) any line items relating to expenditures for capital
works or other capital expenditure in the Annual Plan for the preceding
Fiscal Year shall be disregarded except where the capital expenditure
approved for the preceding Fiscal Year remains to be paid in accordance with
the approval;
(4) with respect to each other unapproved line item of the
submitted Operating Budget, the amount for such line item set forth in the
Operating Budget for the preceding Fiscal year shall be increased by five
percent (5%).
D. MISCELLANEOUS PROVISIONS. Manager shall operate the Property in
accordance with the applicable Operating Budget with such variances as may be
permitted pursuant to Section VIII.A, or as otherwise expressly provided by
this Agreement. Manager may from time to time recommend to Owner proposed
amendments to the then current Annual Plan or Operating Budget, and upon
Owner's written approval thereof, Manager shall operate the Property in
accordance with the Annual Plan or Operating Budget as so amended. Any
inconsistencies between the terms and conditions of this Agreement and the
provisions of any Annual Plan shall be governed by the provisions of the
Annual Plan. Manager shall not be deemed to be in breach of its obligation to
comply with the operating standards provided in this Agreement to the extent
that the failure to comply with such standards results from insufficient
funds due to Owner's refusal to approve any element of an Annual Plan
proposed by Manager, or insufficient funds being on deposit in the Owner's
Account due to withdrawals by Owner, provided that the foregoing shall not be
deemed to relieve Manager from liability for such obligations if the need for
such funds resulted from Manager's gross negligence, willful misconduct or
fraud.
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ARTICLE VIII
DISBURSEMENTS
A. PAYMENT OF OPERATING EXPENSES. Subject to the provisions of
Article IX, Manager shall pay, prior to delinquency, during each month of the
term hereof from funds on deposit in the Owner's Account as provided in
Section B of this Article, all Operating Expenses due and payable in
accordance with the Operating Budget without further consent of Owner, and
such further sums as Owner may have directed in writing Manager to pay. In
addition, Manager may pay the following Operating Expenses without obtaining
Owner's consent whether or not the amount thereof is in excess of the
respective amounts set forth therefor in the Operating Budget: (1) all
Non-Discretionary Expenses, (2) Emergency expenditures in accordance with
Section XI.D, and (3) Discretionary Expenses exceeding any individual line
item in the Operating Budget, provided that the aggregate amount of such
excess Discretionary Expenses in any Fiscal Year, exclusive of any amounts
expended pursuant to the foregoing clauses (1) or (2), shall not exceed five
percent (5%) of the aggregate amount of all Discretionary Expenses set forth
in the Operating Budget for such Fiscal Year, without Owner's prior written
consent.
B. CHECKS. Manager shall designate one or more officers or
employees to sign checks for the payment of Operating Expenses from the
Owner's Account. Except for the drawing of certain checks on the Owner's
Account as expressly authorized herein, Manager shall not have any authority
to withdraw funds from, or otherwise give instructions relating to, the
Owner's Account. Owner shall designate one or more representatives of Owner
as signatories on the Owner's Account which representatives shall have the
right to sign checks, draw funds from and otherwise give instructions
relating to the Owner's Account, PROVIDED that Owner shall not withdraw funds
from the Owner's Account which would, in the reasonable judgment of Manager,
be necessary to be retained to ensure that all Operating Expenses and capital
expenses can be paid from time to time as and when they become due.
ARTICLE IX
ADVANCES FOR OPERATING EXPENSES
A. NOTIFICATION. Pursuant to Section XII.A(16), Manager shall
submit to Owner, on a monthly basis, an estimate of the Operating Expenses
and other items required to be paid by Manager hereunder which will become
due during the ensuing calendar month and the dates on which such amounts
will be payable. In addition, if, during any month within the term of this
Agreement, Manager determines that the balance in the Owner's Account is or
will be insufficient to pay Operating Expenses and any other items required
to be paid by Manager hereunder,
23
Manager shall promptly notify Owner of that event and of the amount of the
deficiency, actual or anticipated. Such notice shall be accompanied by an
explanation for any variance from the Operating Budget, and, unless any such
variance is the result solely of a change of not more than thirty (30) days
in the timing of payment of certain Operating Expenses, or is the result of
Owner's withdrawal of funds from the Owner's Account, then as promptly as
practicable thereafter Manager shall deliver to Owner for Owner's reasonable
approval a revised Operating Budget for the remainder of the applicable
Fiscal Year.
B. OWNER'S ADVANCES. Promptly after receipt of the Manager's
estimate under Section A of this Article or upon request by Manager, Owner
may advance or cause to be advanced to the Owner's Account such funds as are
necessary to pay Operating Expenses as they become due. Manager's obligation
to pay the obligations of the Property and Owner under this Agreement is
conditioned upon the availability of sufficient funds (from a Person other
than Manager) to perform such obligation, and, Manager shall not be deemed in
default of any provision of this Agreement for its failure to pay or
discharge any Operating Expenses or other Property expenses to the extent the
balance of the Owner's Account is insufficient to pay the same.
C. INDEMNIFICATION. Owner hereby agrees to indemnify, defend and
protect Manager and to hold Manager harmless from and against any and all
causes of action, losses, costs, damages, expenses or liabilities (including
reasonable attorneys' fees and expenses incurred in good faith and court
costs) suffered or incurred by Manager as a result of Owner's failure to
advance funds to cover a deficiency in the Owner's Account if:'
(1) the expense relates solely to the Property;
(2) the deficiency in the Owner's Account has not been
caused by Manager's gross negligence, willful misconduct or fraud; and
(3) Manager promptly notified Owner of the existence and the
amount of the deficiency in accordance with Section A of this Article.
ARTICLE X
FIDELITY INSURANCE COVERAGE
Manager and all officers and employees of Manager who may handle or
are responsible for the handling of receipts or disbursements shall be
covered by insurance maintained by Manager, at its sole cost and expense, in
an amount not less than One Million
24
Dollars ($1,000,000) for employee dishonesty coverage against any and all
loss, theft, embezzlement or other fraudulent acts on the part of Manager or
Manager's employees, and not less than One Hundred Thousand Dollars
($100,000) for money and securities on and off the premises, transit and
depositors forgery coverage, indemnifying Owner, as obligees, against any and
all loss, theft, embezzlement or other fraudulent acts on the part of Manager
or Manager's employees.
ARTICLE XI
MAINTENANCE OF THE PROPERTY
A. STANDARD. Manager shall cause the Property and all buildings,
improvements and systems comprising same to be maintained at a standard not
less than the prevailing national standard of industry practice for
properties of a similar type and quality as the Property. In connection
therewith, Manager shall use its diligent good faith efforts to contract in
the name and at the expense of Owner, for all services and utilities
necessary for the efficient maintenance and operation of the Property, as
contemplated by the Annual Plan. Manager shall not enter into any contracts
on behalf of Owner without the prior written consent of Owner unless (1) the
payments required to be made by Manager and/or Owner under such contract, in
the aggregate, are contemplated by the applicable Annual Plan or will be less
than or equal to One Hundred Thousand Dollars ($100,000) per Fiscal Year,
subject to annual increase on each January 1 commencing on January 1, 1997
based on the percentage increase in the Index during the preceding Fiscal
Year, and such expense is included within a line item in the Operating
Budget, (2) such contract is for a term no longer than one year unless such
contract may be terminated on no more than thirty (30) days' notice without
charge or penalty, and (3) such contract is not with a Related Person to
Manager, in which event Manager shall be entitled to enter into such contract
without Owner's consent. All work for the maintenance and repair of the
Property shall be performed by independent contractors or affiliates of
Manager, or by Property employees, except to the extent required by Manager's
gross negligence, willful misconduct or fraud.
B. SUPPLIES AND EQUIPMENT. Manager shall, at Owner's expense,
purchase such supplies, equipment and services as are necessary for the
maintenance and operation of the Property; PROVIDED, HOWEVER, that except as
otherwise expressly permitted hereunder no disbursement for this purpose
shall exceed the amount set forth in the Operating Budget (subject to
variances permitted by Section VIII.A) and no such disbursement shall be made
unless the necessary funds are available to Manager from the Owner's Account.
25
C. ENFORCEMENT OF CONTRACTS. In connection with the maintenance
and operation of the Property, Manager shall take all commercially reasonable
steps, including legal action when authorized in writing by Owner, to enforce
all maintenance, service and supply contracts, guarantees, warranties, bonds
and other third party contractual undertakings, if any.
D. EMERGENCIES. In the event of an Emergency, Manager may make such
repairs to the Property and take such other actions as Manager may deem
reasonably necessary irrespective of any cost limitations or other
restrictions imposed by this Agreement, provided, however, that Manager will
use its diligent good faith efforts to notify Owner prior to making any such
repair or taking any such action and shall not take any such action if Owner
has otherwise directed Manager in writing following receipt of such
notification. Promptly after an Emergency, or after knowledge of any
conditions which require maintenance or repair work at a projected cost in
excess of the annual amounts authorized in the Annual Plan, Manager shall
deliver a notice thereof to Owner together with its recommendations with
regard thereto.
ARTICLE XII
RECORDS AND REPORTS
A. MONTHLY REPORTS. Manager shall maintain at its offices and
deliver to Owner at Owner's request a report in form reasonably acceptable to
Owner containing the following information with respect to the Property within
thirty (30) days after the end of each calendar month (or within thirty (30)
days after the end of such other period as may be agreed between the
parties) (each such month or other period being referred to herein as a
"PERIOD"):
(1) An itemized statement of Cash Receipts for the Period and
cumulatively for the Fiscal Year to date and the amount of all deposits into
the Owner's Account for the Period and cumulatively for the Fiscal Year to
date;
(2) An itemized statement of capital receipts for the Period
and cumulatively for the Fiscal Year to date;
(3) An itemized statement showing the Operating Expenses for
the Period and the cumulative Operating Expenses for the Fiscal Year to date;
(4) An itemized statement showing the capital expenditures
and significant maintenance items of a capital nature for the Period and
cumulatively for the Fiscal Year to date;
26
(5) A list of debtors, aging such debtors as at the end of
the Period and specifying the source of the debt;
(6) To the extent such information is available to Manager,
a reconciliation statement for the Period of the Owner's Account and any
other account opened by the Manager for the purposes of this Agreement or
maintained by the Manager in the name of or on behalf of Owner;
(7) A statement of net operating income for the Period and
cumulatively for the Fiscal Year to date;
(8) A statement of variations between the Operating Budget
and the net operating income for the Period and cumulatively for the Fiscal
Year to date;
(9) A statement of variations between the capital budget and
capital expenditures for the Period and cumulatively for the Fiscal Year to
date;
(10) A leasing status report for all Occupants containing a
rent roll, a statement of vacancies in the Property at the end of the Period
(showing the rental value of the premises and the status of any negotiations
with potential Occupants) and any new or renewed Leases executed, pending or
under negotiation and highlighting all changes in the status of any Leases
since the last such monthly report, PROVIDED, HOWEVER, that with respect to
Temporary Leases, Manager need provide in its monthly report only aggregate
amounts for income and expenses and delineate any in-line space occupied
under any Temporary Leases;
(11) Details of rent and fee reviews negotiated during the
Period under all Leases other than Temporary Leases;
(12) A statement of the respective sales figures achieved by
each Occupant (except for Occupants under Temporary Leases) during the Period
and during the current Fiscal Year to date, including comparisons with the
same period in the previous Fiscal Year; and, to the extent that any
Occupants are required for that Period to, and in fact do, deliver audited
statements under their Leases or Manager has carried out an audit as
permitted under such Leases, an audited statement of such Occupants'
respective sales figures;
(13) A statement containing full details of any Emergency
occurring during the Period including details of the action taken by Manager
under Article XI and an itemized schedule of costs incurred by Manager in
respect of the Emergency;
27
(14) A management report summarizing significant events or
activities affecting the Property which occurred during the Period or which
are likely to occur in subsequent months;
(15) An estimate of any Operating Expenses and other items
required to be paid by Manager hereunder becoming due during the ensuing
month and the dates on which such amounts will become due;
(16) For every three-month period, a report of the amount
spent on marketing, advertising and promotion of the Property and Occupants'
respective businesses in the immediately preceding three-month period; and
(17) Any other information or statements reasonably requested
by Owner from time to time.
B. FINANCIAL STATEMENTS. (1) Manager shall maintain or cause to
be maintained accurate and complete financial accounts (including the
appropriate ledgers and journals) and supporting documents (including
invoices and receipts) for the Property showing assets, liabilities, income,
operations, transactions and the financial position of the Property to enable
the financial statements referred to in Section B(2) of this Article to be
properly and efficiently prepared (including, without limitation, by
maintaining proper computer programs and systems), and must keep "hard"
copies of such financial accounts and supporting documents at its principal
office, or otherwise ensure that such copies are readily available, for at
least seven (7) years. Owner acknowledges that (unless Owner shall have
contributed to the cost of acquiring or developing such software) the
computer software maintained by Manager for the purposes of this Section B
belongs to Manager if the software is used by Manager or Related Persons in
connection with other shopping centers or assets.
(2) Manager shall deliver to Owner, within thirty (30) days
after the end of each fiscal quarter, except for the last quarter of any
Fiscal Year in which case the applicable period shall be sixty (60) days
after the end of such Fiscal Year:
(i) for the periods ending March 31, June 30 and September 30
in the relevant Fiscal Year, unaudited financial statements for the Property
for the respective periods and for the Fiscal Year to date; and
(ii) for the period ending December 31, in the relevant
Fiscal Year, unaudited financial statements for the Property for the
respective period and for the Fiscal Year to date,
28
in each case including, without limitation, a profit and loss statement, a
balance sheet and reconciliations for the Owner's Account and any other
account operated by Manager for the purposes of this Agreement.
(3) The financial reports delivered pursuant to Section B(2)
of this Article shall be accompanied by:
(i) a revised projection for the balance of the Fiscal Year
comparing the Property's position with the Annual Plan, taking into account
the actual Gross Income, Operating Expenses and capital expenses received
from or incurred for the Property to the relevant date and of the estimated
sums for the balance of the Fiscal Year of anticipated Operating Expenses,
capital expenses, Gross Income and capital receipts, together with an
explanation of material variances from the Annual Plan;
(ii) a revised statement of anticipated events or activities
affecting the Property which are expected to take place;
(iii) such other information, including, without limitation,
such reports as may be required by any lender or mortgagee of Owner, as Owner
may reasonably request in good faith concerning the Property; and
(iv) for the period ending December 31, in each Fiscal Year
only, an inventory of all equipment, machinery and other property owned by
Owner showing their current depreciated values as at December 31, of the
relevant Fiscal Year for tax purposes.
(4) All financial reports prepared pursuant to this Article
shall be prepared on a basis of presentation as agreed upon by Owner and
Manager from time to time.
C. RECORDS. (1) Manager shall maintain proper and sufficient
management accounts and records for the Property to enable Manager to
efficiently perform its obligations under this Agreement and to enable Owner
to promptly obtain any information concerning the Property required by Owner,
and Manager shall keep such management accounts and records at the Property
or another location in the continental United States reasonably approved by
Owner for at least seven (7) years. All records maintained by Manager
pursuant to this Agreement shall be the property of Owner and shall be
delivered to Owner upon the termination of this Agreement or, at Owner's
request, prior to disposal by Manager. Manager shall maintain files with the
originals, or if the originals have been delivered to Owner, copies of all
Leases and other material contracts and agreements relating to the Property.
29
Expenses for any Fiscal Year as determined by any such audit or inspection
differs by more than five percent (5%) from the amount of Gross Income or
total Operating Expenses for such Fiscal Year recorded in Manager's books
and records, in which case Manager shall be responsible for the cost of such
audit or inspection; and
(3) from time to time, as may be reasonably appropriate in
order to give Owner time to make any necessary or appropriate decisions in
response thereto, provide information and recommendations to Owner as to:
(i) market conditions and trends affecting the Property;
(ii) changes or proposed changes to Legal Requirements
affecting the Property (including, without limitation, reassessments carried
out by any responsible authority) and any changes or proposed changes to
practices or procedures adopted by a majority of property owners or managers
or both concerning the prevailing national standard of industry practice with
respect to the management, operation and leasing of properties of a type and
quality similar to the Property of which Manager is aware;
(iii) any proposed or recommended amendments to the Standard
Form of Shop Lease or other standard documents for the Property, the rules
for the Property or the memorandum or articles of association of any
committee, merchants association or similar body appointed to operate and
administer the Media Fund;
(iv) any improvements which may be made to the Property, this
Agreement, the procedures employed by Manager for carrying out its
obligations under this Agreement, the Operating Budget, the capital budget or
any other matter to improve the value, economical operation and efficiency or
appearance of the Property;
(v) the occupancy mix within the Property;
(vi) the type of insurance maintained for the Property, the
coverage level of insurance under any policy effected for the Property and
alterations to the terms of any insurance policy held by or on behalf of
Owner for the Property; and
(vii) any other matters which should be disclosed to Owner in
the proper performance of its obligations under this Agreement or which may
be reasonably requested by Owner from time to time, including, without
limitation, any additional information or financial reports and statements
that Owner may reasonably require to provide to its lenders, bankers,
partners, shareholders, joint venturers or any similar Person, PROVIDED that
Owner shall be
31
responsible for any additional costs of Manager in providing such additional
information or reports.
E. TAX RETURNS. Within ninety (90) days after the end of each
Fiscal Year, Manager will provide the information relating to the Property
necessary to complete the tax returns of Owner and will cooperate with Owner
and its attorneys, accountants and tax advisers with respect to the completion
thereof in good faith.
F. GENERAL QUALIFICATIONS. Owner acknowledges that Manager and its
Affiliates manage shopping centers other than the Property on behalf of
proprietors other than Owner (collectively, "OTHER MANAGEMENT ACTIVITIES").
Owner further acknowledges that:
(1) in order to undertake effectively the Other Management
Activities in accordance with their respective obligations under agreements
relating to those Other Management Activities, Manager and Related Persons
employ reasonable standardized and uniform information and accounting
procedures and systems (collectively, the "MANAGEMENT INFORMATION SYSTEMS");
and
(2) the obligations of Manager under this Agreement to provide
information (I.E., additional information that is not specifically described
in this Agreement and which is requested by Owner pursuant to this Article
XII, pertaining to the management and operations of the Property
(collectively, "OWNER'S ADDITIONAL INFORMATION REQUIREMENTS")) are not
intended to operate in such a way as to cause unreasonable disruption to the
Management Information Systems or to require Manager to incur unreasonable
costs and expenses in obtaining and adapting the Management Information
Systems in order to provide Owner's Additional Information Requirements.
Notwithstanding the foregoing, and any other provisions of this Agreement,
unless any such requested information is Confidential Information as defined
below, Manager will comply with Owner's Additional Information Requirements
and will supply the information requested; PROVIDED, however, that Owner
will reimburse Manager for the reasonable direct additional costs that
Manager demonstrates Manager or any Affiliate incurred in complying with such
request, if it is not common practice for managers of regional
malls of a kind similar to the Property to provide the information requested
pursuant to the Owner's Additional Information Requirements.
Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Manager be obligated to provide to Owner any
information, document or report which (i) is prepared for the purposes of, or
any minutes of proceedings of, the board of directors of Manager or any
Affiliate of Manager, (ii) directly and primarily relates to commercially
confidential information concerning other shopping centers by any Affiliates
of Manager, or (iii) is prepared for the direct and primary purposes of, or
constitutes a report to the
32
Westfield Finance and Management Committee or other corporate management
committee performing similar functions (collectively, "CONFIDENTIAL
INFORMATION").
Notwithstanding anything to the contrary contained herein, Owner
shall in no event acquire any rights with respect to Manager's Management
Information Systems or Manager's plans, programs or processes for the
management and operation of the Property.
ARTICLE XIII
COSTS AND EXPENSES - COMPENSATION
A. MANAGEMENT FEE. Manager shall be entitled to a management and
leasing fee (the "MANAGEMENT FEE") for rendering the services herein required
during the term of this Agreement equal to five percent (5.0%) of all
minimum, fixed and percentage rent (including without limitation (1) proceeds
from any litigation wherein damages equivalent to or based upon rent payable
to Owner from a defaulted Occupant are recovered, exclusive of interest, (2)
all security deposits which have been applied to rent payable to Owner, and
(3) all proceeds from loss of rents insurance maintained by Owner relating to
the Property but excluding income from specialty leasing which is paid to
Owner on a net basis) under all Leases at the Property during each Fiscal
Year (or the pro rata portion of such amounts for any partial Fiscal Year
during the term of this Agreement). Subject to adjustment as hereinafter
provided, such fee shall be payable monthly by Owner in arrears at the end of
each month during the term of this Agreement based on the minimum, fixed and
percentage rent for such month as shown in the most recent leasing status
report delivered pursuant to Article XII.A(10). Manager is hereby authorized
to pay to itself on account of the Management Fee each such monthly
installment from the Owner's Account. The Management Fee shall be adjusted on
the following basis so that the aggregate Management Fee equals the amount
set forth in this Section A: (1) monthly on an interim basis as soon as
practicable after Manager has delivered to Owner the financial statements
specified in Section XII.A for such month. (2) quarterly on an interim basis
as soon as is practicable after the delivery to Owner of the quarterly
financial statements specified in Section XII.B(2)(i), and (3) annually on a
final basis as soon as is practicable after the delivery to Owner of the annual
financial statements specified in Section XII.B(2)(ii). Promptly after each
such adjustment, Owner or Manager, as the case may be, shall pay to the other
the amount of the applicable shortfall or overpayment of the Management Fee
as determined by such adjustment. In the event that there are insufficient
funds in the Owner's Account to pay the Management Fee due for any month
during the term of this Agreement, then if Owner does not pay the amount of
such Management Fee within ten (10) Business Days after receipt of notice of
such insufficiency, such unpaid Management Fee shall bear interest at a rate
equal to the lesser of (1) the Prime Rate plus two percent (2%), compounded
monthly, or (2) the highest rate allowable by law, for the period
33
from the date such Management fee was due until the date that it is paid in
full by Owner to Manager. With respect to any partial Fiscal Year during the
term of this Agreement, for the purpose of calculating the Management Fee,
the percentage rent shall be allocated to the portion of the year during
which the Management Fee is payable by multiplying (1) the amount of
percentage rent received from the Property for the entire applicable Fiscal
Year, by (2) a fraction, the numerator of which shall be the applicable
Occupant's gross sales upon which the percentage rent is calculated with
respect to the portion of such Fiscal Year during which this Agreement was in
effect, and the denominator of which shall be such gross sales of the
applicable Occupants with respect to such entire Fiscal Year.
B. EXPENSE REIMBURSEMENT. In addition to the Management Fee
specified in Section A above, Manager shall be entitled to reimbursement as
an Operating Expense of the Property, for those costs and expenses relating to
the management, operation and leasing of the Property incurred by it and
specifically authorized for reimbursement under the terms of this Agreement.
Manager shall not be obligated to incur or bear any expenses of the Property
except those reimbursable under the terms of the immediately preceding
sentence.
C. LEASING. Manager shall be entitled to receive from Owner (1) a
lease preparation fee of Seven Hundred and Fifty Dollars ($750) per Lease and
(2) to the extent not recovered from any Occupant, a plan review fee of One
Thousand Dollars ($1,000) per Occupant, such amounts to be subject to annual
increase from and after January 1, 1997 based on the annual increase in the
Index during the preceding Fiscal Year.
ARTICLE XIV
INSURANCE
Unless such insurance is maintained by Owner and its Affiliate as
part of a corporate insurance program, Manager shall procure and maintain all
insurance required pursuant to the applicable Annual Plan or any mortgage or
deed of trust encumbering the Property, and shall procure such insurance in
such amount and from such companies as may be approved by Owner in the Annual
Plan or otherwise authorized by Owner in writing. Manager shall comply with
all Insurance Requirements in the management and operation of the Property
and shall use its diligent good faith efforts to cause all Occupants to
comply with any applicable Insurance Requirements.
34
ARTICLE XV
ALTERATIONS
Manager shall make no changes or alterations in or additions to the
Property or any part thereof of a material nature without the prior written
consent of Owner, except as otherwise expressly set forth in the Annual Plan.
Except with respect to any expansion, redevelopment or refurbishment, or
preliminary services relating thereto, performed pursuant to a Development
Agreement for the Property, Manager shall supervise the performance of all
repairs, renovations and alterations performed at the Property, and shall
monitor all Occupant alterations of the Property on behalf of Owner in such a
manner as may be reasonably required of Manager. Manager shall promptly
report any liens on the Property to Owner.
ARTICLE XVI
TERMINATION
A. TERM. The term of this Agreement shall be for an initial term
expiring on May 20, 2000. Thereafter, until this Agreement is terminated in
accordance with its terms, this Agreement shall be deemed renewed automatically
each year for an additional one year period unless the trustee (the "WAT
Trustee") of the Westfield America Trust, an Australian publicly listed
property trust, and 75% of the Independent Directors (as such term is defined
in the Third Amended and Restated Articles of the Owner) of the Owner's Board
of Directors agree that either (i) there has been unsatisfactory performance
by the Manager that is materially detrimental to the Owner or (ii) the fees
payable to Manager are not fair, PROVIDED that Owner shall not have the right
to terminate this Agreement under clause (ii) above if Manager agrees to
continue to provide management services for the Property at a fee that the
WAT Trustee and 75% of the Independent Directors have determined to be fair
and PROVIDED FURTHER that the WAT Trustee's agreement with respect to the
matters set forth in clauses (i) or (ii) will only be required if the WAT
Trustee is the owner of 10% or more of the outstanding capital stock of the
Owner. If Owner shall elect not to renew the term of this Agreement at the
expiration of the initial term or any extended term as set forth above, Owner
shall deliver to Manager prior written notice of Owner's determination not to
renew this Agreement based on the terms set forth in this subparagraph A not
less than 30 days prior to the expiration of the then existing term. If Owner
elects not to renew this Agreement, Owner shall designate the date, not less
than 60 nor more than 180 days from the date of the notice, on which the
Manager shall turn over management of the Property to Owner and this
Agreement shall terminate as of such date.
35
B. NON-CURABLE TERMINATING EVENTS. (1) Owner may terminate this
Agreement on not less than 15 days written notice to Manager upon the
occurrence of any of the following events:
(1) the Bankruptcy of Manager;
(2) Owner sells or transfers 100% of its interest in
the Property (other than to a Related Person), whether directly
or indirectly;
(3) any of the Other Management Agreements are validly
terminated by Owner or one of its Affiliates in accordance with
their terms by reason of Manager's material default thereunder;
(4) the foreclosure by any mortgagee upon the Property
or the taking of possession thereof by deed-in-lieu of
foreclosure, except as otherwise agreed in writing by Manager
and such Mortgagee;
(5) an act of fraud, embezzlement or theft constituting
a felony against Owner or its Affiliates which causes it
material injury is perpetrated by Manager or by Developer or by
Advisor in its corporate capacity (as distinguished from the
acts of any employees of such entities which are taken without
the approval or complicity of the Board of Directors of
Manager's managing general partner) under this Agreement, the
Advisory Agreement, the Development Framework Agreement, any
Development Agreement or any Leasing Agreement; or
(6) the Property or a substantial part of the Property
is damaged or destroyed where the Owner has determined not to
rebuild or reconstruct, provided, however, that in such event
Manager will continue to operate the Property for a reasonable
period of time until Owner winds down the operation of the
Property, and provided further that (i) this Agreement shall
be automatically reinstated if, within twenty-four (24) months
after the date of such damage or destruction, Owner determines
to rebuild the Property or develop a new shopping center as a
replacement for the Property, and (ii) in the case of the
destruction of only a substantial part of the Property, if
Owner elects to continue the operation of the remaining
portion of the Property, this Agreement shall remain in effect
with respect to the portion of the Property to be operated.
36
(2) This Agreement shall terminate if Manager shall
notify Owner that management of regional shopping centers
shall cease to be one of the principal business undertakings
of Westfield Holdings Limited and its affiliates in the United
States, PROVIDED that this Agreement shall continue for a
period of 180 days after delivery of such notice to Owner if
Owner shall be reasonably satisfied with Manager's ability to
continue managing the Property during such period.
C. CURABLE DEFAULTS. (1) Either Owner or Manager may terminate
this Agreement by written notice to the other party in the event that the
other party shall default (the "Defaulting Party") in the performance or
observance of any material term, condition or covenant contained in this
Agreement in respect of the Property not falling under Section XVI.B or shall
fail to perform or observe the same in accordance with the required standard
under this Agreement and such default shall continue for a period of thirty
(30) days after written notice thereof shall have been received by the
non-defaulting party (the "Non-Defaulting Party") specifying such default and
requesting that the same be remedied in such thirty-day period, provided that
a ten (10) day period shall apply with respect to any failure to make a
monetary payment hereunder (a "DEFAULT NOTICE").
The Defaulting Party shall be deemed to have complied with a
Default Notice given under this Section XVI.C if the default (other than a
monetary default) is such that it cannot reasonably be remedied within thirty
(30) days and the Defaulting Party shall, in good faith, have commenced to
remedy the default specified therein as soon as is practicable after
receiving such Default Notice, and, thereafter shall have diligently
prosecuted the cure to its completion.
(2) A Non-Defaulting Party shall have the right to terminate
this Agreement based on a default by a Defaulting Party under this Section XVI.C
only if such default is determined to constitute an Adjudicated Default as
provided below. If a Non-Defaulting Party believes that the other party has
defaulted in the performance of a material obligation under this Agreement,
and that such default remains uncured following the delivery of a default
notice and the expiration of the applicable cure period provided in
Section XVI.C(1), then such Non-Defaulting Party may deliver a written notice
to the other party setting forth its intention to terminate this Agreement
pursuant to this Section (a "TERMINATION NOTICE"). If the Defaulting Party
desires to contest such termination, then the Defaulting Party shall so
notify the Non-Defaulting Party within ten (10) Business Days after receipt
of the Termination Notice, and a senior officer of each party shall meet
promptly and negotiate in good faith in order to resolve such dispute. If
such senior officers are unable to resolve the dispute within thirty (30)
days after the Defaulting Party's receipt of the Termination Notice, then the
Defaulting Party may institute an action in the appropriate judicial forum
within thirty (30) days thereafter to determine whether
37
the Defaulting Party has defaulted in the performance of a material
obligation hereunder. An "ADJUDICATED DEFAULT" shall be deemed to have
occurred if:
(i) the parties' respective senior officers are
unable to resolve such dispute and the Defaulting Party does not institute a
judicial proceeding within sixty (60) days after it's receipt of a
Termination Notice;
(ii) a court renders a final decision finding that
the Defaulting Party has defaulted in the performance of a material
obligation hereunder, and the Defaulting Party does not deliver a notice of
appeal to the appropriate parties within the applicable appeal period; or
(iii) a court renders a final decision finding that
the Defaulting Party has defaulted in the performance of a material
obligation hereunder and an appeal is perfected by the Defaulting Party
within the applicable appeal period, and a second court renders a final
decision finding that the Defaulting Party has defaulted in the performance
of a material obligation hereunder.
D. MANAGER'S RIGHTS AND OBLIGATIONS ON TERMINATION. Upon
termination of this Agreement Manager shall:
(3) promptly surrender and deliver to Owner any space in the
Property occupied by Manager and pay to Owner or as Owner shall direct all
Gross Income and other monies related to the Property on hand and all moneys
due to Owner under this Agreement including any moneys received after
termination;
(4) promptly deliver to Owner originals in the possession of
or reasonably available to Manager, its Affiliates, agents or employees or,
if such originals are not in the possession or reasonably available to
Manager, copies of all contracts, documents, reports, market studies, files,
funds, surveys, insurance policies, papers, Leases, keys, records and other
property pertaining to this Agreement or to the Property in the possession of
or reasonably available to Manager, its Affiliates, agents or employees;
(5) furnish all such information and take all such action as
Owner may reasonably require in order to effect an orderly and systematic
termination of Manager's duties and activities hereunder and the appointment
of a substitute manager;
(6) as soon as is reasonably practicable, deliver to Owner,
at Owner's expense, audited financial statements reflecting the balance of
all Gross Income, all capital
38
contributions, all Operating Expenses, all capital expenses and the credit
balance of all accounts maintained by the Manager under this Agreement as at
the date of termination;
(7) if requested by Owner, at Owner's cost, promptly give
written notice to the Occupants, in a form reasonably satisfactory to Owner,
that Manager no longer manages or is otherwise associated with the Property;
(8) immediately assign and transfer all accounts maintained
by Manager under this Agreement for Owner and assign all contracts with
respect to the Property to a person designated by Owner or as otherwise
directed by Owner and such person shall assume all of Manager's obligations
under such contracts; and
(9) be paid all Management Fees earned under the provisions
of this Agreement prior to such termination. Manager shall not be obligated
to refund any Management Fees earned and received from any month prior to the
month in which this Agreement is terminated, provided, however, that Manager
shall refund to Owner any overpayments of the Management Fee previously paid
to Manager.
ARTICLE XVII
DELIVERY OF DOCUMENTS AND NOTICES
In order to be deemed effective, all documents to be delivered and
all notices, approvals, authorizations and/or consents to be given or
obtained by any party to this Agreement shall be in writing and shall be
given by personal delivery, or sent by express mail or nationally recognized
overnight courier, or by registered or certified mail, postage prepaid,
return receipt requested, or by facsimile (with confirmed receipt) addressed
as follows:
To Manager: Westfield Management Company
c/o Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Executive Director
Fax: 000-000-0000
39
To Owner: x/x Xxxxxxxxx Xxxxxxx Inc.
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: President
Fax: 000-000-0000
The above addresses may be changed for future communications or delivery of
notice hereunder by giving notice of such change to the others listed above
in the manner prescribed by this Article. All notices shall be deemed
effective when received by all applicable parties at the addresses set forth
above (as such addresses may be changed by the parties in accordance
herewith). Notwithstanding the foregoing, no notice shall be deemed
ineffective because of any party's refusal to accept delivery at the address
specified for the giving of such notice in accordance herewith.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
A. LAW TO APPLY. This Agreement is made in and shall be governed
by and construed in accordance with the laws of the State of New York.
B. INCORPORATION BY REFERENCE. Exhibit A, as attached hereto, is
hereby expressly incorporated herein to the same extent and with the same
effect as if fully set out herein.
C. SECTION HEADINGS AND REFERENCES. Headings at the beginning of
Articles and Sections of this Agreement are solely for the convenience of the
parties and are not a part of this Agreement. All references herein to
specific Articles or Sections are references to the applicable Articles or
Sections of this Agreement, unless otherwise indicated.
D. TERMS. When required by the context, whenever the singular
number is used in this Agreement, the same shall include the plural, and the
plural shall include the singular, and the masculine gender shall include the
feminine and neuter genders.
E. WAIVER. Any waiver, express or implied, by a party hereto, of
any breach of this Agreement by another party or parties, shall not be
considered a waiver of any subsequent breach.
40
F. SEVERABILITY. The invalidity or unenforceability of any portion
of this Agreement shall not render the remainder hereof invalid or
unenforceable.
G. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and
thereafter shall be deemed an original, and all of which shall be taken to be
one and the same instrument, with the same effect as if all parties hereto
had all signed the same signature page. Any signature page of this Agreement
may be detached from any counterpart of this Agreement without impairing the
legal effect of any signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but having attached to
it one more additional signature pages.
H. TIME. Time is of the essence of this Agreement and each of its
provisions.
I. INCORPORATION OF PRIOR AGREEMENTS. This Agreement contains all
of the agreements of the parties hereto with respect to the matters contained
herein, and no prior agreement or understanding pertaining to any such matter
shall be effective for any purpose. No provision of this Agreement may be
amended or added to except by an agreement in writing signed by the parties
hereto.
J. FURTHER ASSURANCES. Each party hereto hereby agrees to execute
and deliver any and all instruments, agreements and other documents
reasonably necessary to effect the acts contemplated hereby, to the extent
required by this Agreement.
K. ATTORNEYS' FEES. If any party commences an action against
another to enforce any of the terms hereof or because of the breach by any
party of any of the terms hereof, then the successful party after final
judgment shall be entitled to receive from the other party its reasonable
attorneys' fees and other costs and expenses incurred in connection with the
prosecution or defense of such action.
L. PERSONAL AGREEMENT. This Agreement shall be binding on the
parties hereto. No assignment by Manager shall be effective for any purpose
without the written consent and approval of Owner; PROVIDED, however, that
notwithstanding the foregoing provisions of this Section L, Manager shall
have the right to assign its rights and obligations under this Agreement
without Owner's prior consent to any Affiliate of WHL as long as the
transferee Person assumes the obligations and liabilities of Manager
hereunder from and after the effective date of such transfer. The transfer of
an interest in Manager or any constituent partner of Manager shall not be
deemed an assignment of this Agreement so long as WHL continues to own,
directly or indirectly, at least a 50% voting and economic interest in
Manager. Upon any such transfer, Manager shall be released from all
liabilities arising hereunder from and after the effective date of such
transfer. Manager agrees that it will not subcontract all or substantially
all of its
41
management responsibilities under this Agreement, except to an Affiliate of
WHL, without the written consent and approval of Owner. Any attempted
assignment or sub-contract in violation of the provisions of this Section L
shall be void AB INITIO.
M. NO PARTNERSHIP. Nothing contained in this Agreement shall
constitute Owner and Manager as partners with one another. Subject to the
terms and provisions of this Agreement, each of the parties shall have the
right to engage in other businesses and business transactions and the other
party shall have no right or interest therein.
N. AMENDMENTS. No amendment to this Agreement shall be effective
unless signed by the party to be charged with any additional responsibilities
thereunder.
O. INDEMNITIES. (1) Manager hereby agrees to indemnify, defend and
protect Owner and its respective officers and directors (such persons
collectively called the "INDEMNIFIED PARTIES" for the purposes of this
Section XVIII.O(1)), and hold each of the Indemnified Parties harmless
against all losses, damages, costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses incurred in good faith and
court costs) incurred by the Indemnified Parties by reason of any claim or
demand being made upon or any action taken against any of the Indemnified
Parties arising from Manager's gross negligence or willful misconduct or
fraud with respect to its duties and obligations under this Agreement. The
Indemnified Parties shall, in good faith, endeavor to notify Manager in
writing as to every such claim, demand or action against the Indemnified
Parties within ten (10) Business Days after the Indemnified Parties become
aware that such claim or demand has been made or such action has been taken.
A failure to notify Manager shall not limit Manager's liability under this
Section XVIII.O(1) to the extent that such failure to notify does not
adversely affect Manager's rights with respect to such claim.
(2) Owner hereby agrees to indemnify, defend and protect Manager
and each of Manager's constituent partners and their respective officers and
directors (each such person collectively called the "INDEMNIFIED PARTIES" for
the purposes of this Section XVIII.O(2)), and hold each of the Indemnified
Parties harmless against all losses, damages, costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses incurred in good
faith and court costs) incurred by the Indemnified Parties by reason of any
claim or demand being made upon or any action taken against any of the
Indemnified Parties arising from (i) any gross negligence or willful
misconduct or fraud of Owner, except to the extent Manager or its Affiliate
is responsible for such gross negligence or willful misconduct, or (ii) any
act taken or omission made by Manager in the performance of its obligations
under this Agreement, which act or omission was not the result of Manager's
gross negligence or willful misconduct or fraud. The Indemnified Parties
shall, in good faith, endeavor to notify Owner in writing as to every such
claim, demand or action against the indemnified parties within ten (10)
Business Days after the Indemnified Parties become aware that such claim or
demand has been made or such action has
42
been taken. A failure to notify Owner shall not limit Owner's liability under
this Section XVIII.O(2) to the extent that such failure to notify does not
adversely affect Owner's rights with respect to such claim.
(3) No person engaged as an independent contractor by Owner or
Manager shall be considered an employee, servant, agent or other Person that
Owner or Manager (as the case may be) shall be obligated to indemnify for the
purposes of this Section XVIII.O. Manager shall use its reasonable efforts to
cause Owner to be listed as an indemnified party in any indemnity contained
in an agreement with an independent contractor. The indemnity contained in
this Section XVIII.O made by Owner and Manager shall survive the termination
of this Agreement.
P. OBJECT OF AGREEMENT. The object of this Agreement is the
provision of services by Manager to Owner, and no tangible property will be
conveyed other than tangible property incidental to the provision of such
services.
Q. OWNER'S LENDERS AND/OR PUCHASERS. (1) Manager shall, at the
request of Owner, enter into agreements with lenders providing financing to
Owner encumbering all or any party of the Property, pursuant to which
agreements Manager (i) recognizes the collateral rights, if any, of such
lender(s) with respect to this Agreement, and (ii) acknowledges that if any
such lender forecloses upon Owner's interest in this Agreement, then such
lender or its assignee shall not be liable for any act or omission of Owner
under this Agreement prior to the date of such foreclosure or assignment;
provided that Manager shall not be obligated to enter into any such agreement
that materially increases Manager's obligations or materially diminishes
Manager's rights hereunder.
(2) Manager shall, at Owner's request, cooperate with and provide
information to any lender(s) providing financing to Owner or to any potential
purchaser(s) of the Property regarding actual facts and matters within the
knowledge of Manager's personnel engaged in the management of the Property.
R. CONFIDENTIALITY. (a) Manager agrees to hold in confidence and
not to use or disclose to others any confidential or proprietary information
of Owner heretofore or hereafter disclosed to Manager ("Owner Confidential
Information"), including, but not limited to, any data, information, plans,
programs, processes, costs, operations or the names of any tenants which may
come within the knowledge of Manager in the performance of, or as a result
of, its services, except where required by judicial or administrative order,
or where Owner specifically gives Manager written authorization to disclose
any of the foregoing to others or such disclosure hereunder. If Manager is
required by a judicial or administrative order to disclose any Owner
Confidential Information, Manager will promptly notify Owner thereof, consult
with Owner on the advisability of taking steps to resist or narrow such
request and cooperate with Owner in any
43
attempt it may make to obtain an order or other assurance with confidential
treatment will be accorded to the Owner Confidential Information disclosed.
(b) Owner agrees to hold in confidence and not to use or disclose
to others any confidential or proprietary information of Manager heretofore
or hereafter disclosed to Owner ("Manager Confidential Information"),
including, but not limited to, any information, plans, programs, processes,
costs or operations which may come within the knowledge of Owner
as a result of the services performed by Manager, except where required by
judicial or administrative order, or where Manager specifically gives Owner
written authorization to disclose any of the foregoing to others or such
disclosure hereunder. If Owner is required by a judicial or administrative
order to disclose any Manager Confidential Information, Owner will promptly
notify Manager thereof, consult with Manager on the advisability of taking
steps to resist or narrow such request and cooperate with Manager in any
attempt it may make to obtain an order or other assurance with confidential
treatment will be accorded to the Manager Confidential Information disclosed.
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be executed as of the date first above written.
OWNER:
NORTHWEST PLAZA LLC, a Delaware limited liability company
By: Westfield America Investor L.P., a Delaware partnership, its
managing member
By: Westfield America G.P., Inc., a Delaware
corporation, its general partner
By: /s/ Xxx Xxxxxx
-------------------------------
Xxx Xxxxxx
Its: Secretary
44
MANAGER:
WESTFIELD MANAGEMENT COMPANY
By: Westfield Services, Inc.,
a general partner
By: /s/ Xxx Xxxxxx
------------------
Name: Xxx Xxxxxx
Title: Secretary
45
EXHIBIT A
OTHER MANAGEMENT AGREEMENTS
Separate Management Agreements, each dated as July 1, 1996, as
amended, with respect to each of the following shopping centers:
Connecticut Post Mall
Eagle Rock Plaza
Eastland Shopping Center
Enfield Center
Mid Rivers Mall
Xxxxxxxxxx Mall
Plaza Xxxxxx
South County Center
South Shore Mall
Trumbull Mall
West County Center
Plaza at Xxxx Xxxxxx
Xxxx Xxxx Xxxx
Xxxxxxxx Center
Ex. 10.14
SCHEDULE OF SUBSTANTIALLY IDENTICAL AGREEMENTS
The filed agreement is substantially identical in all material respects
to the Company's management agreements for the following Properties:
Property Parties to Agreement Date of Agreement
-------- -------------------- -----------------
Annapolis Mall Annapolis Mall Limited Partnership June 4, 1997
and CMC
Capital Mall Capital Mall Company and WMC December 9, 0000
Xxxxxxxxx Xxxxx WEA Crestwood Plaza LLC and WMC January 15, 0000
Xxxxxxxx Xxxxx Xxxxxxxx Plaza LLC and WMC October 30, 0000
Xxx Xxxxx Xxxx Xxx Xxxxx Mall LLC and WMC October 7, 0000
Xxxxxx Xxxxx Xxxxxx Xxxxx LLC and WMC October 30, 0000
Xxxxxxxxxxxx Xxxx Xxxxxxxxxxxx Xxxx Associates August 11, 1998
Limited Partnership and WMC
Los Cerritos Los Cerritos LLC and WMC November 17, 0000
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Partnership, October 31, 0000
Xxxxxxxxx Xxxxxxx M.S., Inc.
and WMC
North County Fair North County Fair LLC and WMC October 30, 0000
Xxxxxxxx Xxxx Xxxxxxxx Xxxx LLC and WMC October 7, 0000
Xxxxxxx Xxxxx Xxxxxxx Xxxxx LLC and WMC September 25, 1998
The Promenade Promenade LLC and WMC May 26, 0000
Xxxxxx Xxxx Xxxxxx Mall LLC and WMC September 25, 1998
University Towne University Towne Centre LLC July 31, 1998
Centre and WMC
Valley Fair VF Mall LLC and WMC July 31, 0000
Xxxxxxx Xxxxx Xxxxxxx Xxxxx Regional Shopping May 30, 1997
Regional Shopping Center LLP and CMC
Center
The filed agreement is substantially identical in all material respects to
the Company's management agreement, as amended, for the following Properties:
Property Parties to Agreement Date of Agreement
-------- -------------------- -----------------
Connecticut Post Mall Connecticut Post Limited July 1, 1996;
Partnership and CMC amended May 21, 1997
Eastland Shopping CMP and CMC July 1, 1996;
Center amended May 21, 0000
Xxxxxxx Xxxxxx
Mid Rivers Mall
Xxxxxxxxxx Mall
Plaza at West Covina
Plaza Xxxxxx
South County Center
Xxxx Xxxxxx Xxxxxx
Xxxx Xxxx Xxxx
Xxxxxxxx Shopping
Towne
Eagle Rock Plaza Eagle Rock Properties, Inc. July 1, 1996;
WEA and CMC amended May 21, 0000
Xxxxx Xxxxx Xxxx Xxxxxxxx Xxxxx Xxxxx Mall July 1, 1996;
L.P. and CMC amended May 21, 1997
Trumbull Shopping Westland Properties, Inc. July 1, 1996;
Park and CMC amended May 21, 1997
2
