EXHIBIT 10.1
AMENDED AND RESTATED PROPERTY MANAGEMENT AND LEASING AGREEMENT
This AMENDED AND RESTATED PROPERTY MANAGEMENT AND LEASING AGREEMENT
(this "Management Agreement") is made and entered into as of the 16th day of
September, 2005, by and among XXXX CREDIT PROPERTY TRUST II, INC., a Maryland
corporation ("Xxxx REIT"), XXXX OPERATING PARTNERSHIP II, LP, a Delaware limited
partnership ("Xxxx OP"), and FUND REALTY ADVISORS, INC., an Arizona corporation
(the "Manager").
WHEREAS, XXXX OP was organized to acquire, own, operate, lease and
manage real estate properties on behalf of XXXX REIT;
WHEREAS, XXXX REIT intends to raise money from the sale of its common
stock to be used, net of payment of certain offering costs and expenses, for
investment in the acquisition or construction of income-producing real estate
and other real estate-related investments (including the making or purchase of
mortgage loans), some or all of which are to be acquired and held by Owner (as
hereinafter defined) on behalf of XXXX REIT; and
WHEREAS, Owner intends to retain Manager to manage and coordinate the
leasing of certain of the real estate properties acquired by Owner under the
terms and conditions set forth in this Management Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree, as follows:
ARTICLE I
DEFINITIONS
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Management Agreement, and the definitions of such terms are
equally applicable both to the singular and plural forms thereof:
1.1 "Affiliate" means, with respect to any Person, (i) any Person directly or
indirectly owning, controlling or holding, with the power to vote, 10% or more
of the outstanding voting securities of such other Person; (ii) any Person 10%
or more of whose outstanding voting securities are directly or indirectly owned,
controlled or held, with the power to vote, by such other Person; (iii) any
Person directly or indirectly controlling, controlled by or under common control
with such other Person; (iv) any executive officer, director, trustee or general
partner of such other Person; and (v) any legal entity for which such Person
acts as an executive officer, director, trustee or general partner.
1.2 "Gross Revenues" means all amounts actually collected as rents or other
charges for the use and occupancy of the Properties, but shall exclude interest
and other investment income of Owner and proceeds received by Owner for a sale,
exchange, condemnation, eminent domain taking, casualty or other disposition of
assets of Owner.
1.3 "Improvements" means buildings, structures, equipment from time to time
located on the Properties and all parking and common areas located on the
Properties.
1.4 "Intellectual Property Rights" means all rights, titles and interests,
whether foreign or domestic, in and to any and all trade secrets, confidential
information rights, patents, invention rights, copyrights, service marks,
trademarks, know-how, or similar intellectual property rights and all
applications and rights to apply for such rights, as well as any and all moral
rights, rights of privacy, publicity and similar rights and license rights of
any type under the laws or regulations of any governmental, regulatory, or
judicial authority, foreign or domestic and all renewals and extensions thereof.
1.5 "Lease" means, unless the context otherwise requires, any lease or sublease
made by Owner as landlord or by its predecessor.
1.6 "Management Fees" has the meaning set forth in Section 5.1 hereof.
1.7 "Owner" means Xxxx REIT, Xxxx OP and any joint venture, limited liability
company or other Affiliate of Xxxx REIT or Xxxx OP that owns, in whole or in
part, on behalf of Xxxx REIT, any Properties.
1.8 "Person" means an individual, corporation, association, business trust,
estate, trust, partnership, limited liability company or other legal entity.
1.9 "Properties" means all real estate properties owned by Owner and all tracts
as yet unspecified but to be acquired by Owner containing income-producing
improvements or on which Owner will construct income-producing improvements.
1.10 "Proprietary Properties" means all modeling algorithms, tools, computer
programs, know-how, methodologies, processes, technologies, ideas, concepts,
skills, routines, subroutines, operating instructions and other materials and
aides used in performing the duties set forth in Article 2 that relate to
management advice, services and techniques regarding current and potential
Properties, and all modifications, enhancements and derivative works of the
foregoing.
ARTICLE II
APPOINTMENT OF MANAGER; SERVICES TO BE PERFORMED
2.1 Appointment of Manager. Owner hereby engages and retains Manager as the
manager and as tenant coordinating agent of the Properties, and Manager hereby
accepts such appointment on the terms and conditions hereinafter set forth; it
being understood that this Management Agreement shall cause Manager to be, at
law, Owner's agent upon the terms contained herein.
2.2 General Duties. Manager shall devote its best efforts to performing its
duties hereunder to manage, operate, maintain and lease the Properties in a
diligent, careful and vigilant manner. The services of Manager are to be of
scope and quality not less than those generally performed by professional
property managers of other similar properties in the area. Manager shall make
available to Owner the full benefit of the judgment, experience and advice of
the members of Manager's organization and staff with respect to the policies to
be pursued by Owner relating to the operation and leasing of the Properties.
2.3 Specific Duties. Manager's duties include the following:
(a) Lease Obligations. Manager shall perform all duties of the
landlord under all Leases insofar as such duties relate to operation,
maintenance, and day-to-day management. Manager shall also provide or cause to
be provided, at Owner's expense, all services normally provided to tenants of
like premises, including where applicable and without limitation, gas,
electricity or other utilities required to be furnished to tenants under Leases,
normal repairs and maintenance, and cleaning, and
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janitorial service. Manager shall arrange for and supervise the performance of
all installations and improvements in space leased to any tenant that are either
expressly required under the terms of the lease of such space or that are
customarily provided to tenants.
(b) Maintenance. Manager shall cause the Properties to be
maintained in the same manner as similar properties in the area. Manager's
duties and supervision in this respect shall include, without limitation,
cleaning of the interior and the exterior of the Improvements and the public
common areas on the Properties and the making and supervision of repair,
alterations, and decoration of the Improvements, subject to and in strict
compliance with this Management Agreement and the Leases. Construction
activities undertaken by Manager, if any, will be limited to activities related
to the management, operation, maintenance, and leasing of the Property (e.g.,
repairs, renovations, and leasehold improvements).
(c) Leasing Functions. Manager shall coordinate the leasing of
the Properties and shall negotiate and use its best efforts to secure executed
Leases from qualified tenants, and to execute same on behalf of Owner, if
requested, for available space in the Properties, such Leases to be in form and
on terms approved by Owner and Manager, and to bring about complete leasing of
the Properties. Manager shall be responsible for the hiring of all leasing
agents, as necessary for the leasing of the Properties, and to otherwise oversee
and manage the leasing process on behalf of Owner.
(d) Notice of Violations. Manager shall forward to Owner
promptly upon receipt all notices of violation or other notices from any
governmental authority, and board of fire underwriters or any insurance company,
and shall make such recommendations regarding compliance with such notice as
shall be appropriate.
(e) Personnel. Any personnel hired by Manager to maintain,
operate and lease the Property shall be the employees or independent contractors
of Manager and not of Owner of such Property, Xxxx OP or Xxxx REIT. Manager
shall use due care in the selection and supervision of such employees or
independent contractors. Manager shall be responsible for the preparation of and
shall timely file all payroll tax reports and timely make payments of all
withholding and other payroll taxes with respect to each employee.
(f) Utilities and Supplies. Manager shall enter into or renew
contracts for electricity, gas, steam, landscaping, fuel, oil, maintenance and
other services as are customarily furnished or rendered in connection with the
operation of similar rental property in the area.
(g) Expenses. Manager shall analyze all bills received for
services, work and supplies in connection with maintaining and operating the
Properties, pay all such bills when due, and, if requested by Owner, pay, when
due, utility and water charges, sewer rent and assessments, and any other amount
payable in respect to the Properties. All bills shall be paid by Manager within
the time required to obtain discounts, if any. Owner may from time to time
request that Manager forward certain bills to Owner promptly after receipt, and
Manager shall comply with any such request. Manager shall pay all bills,
assessments, real property taxes, insurance premiums and any other amount
payable in respect to the Properties out of the Account (as hereinafter
defined). All expenses shall be billed at net cost (i.e., less all rebates,
commissions, discounts and allowances, however designed).
(h) Monies Collected. Manager shall timely collect all rent
and other monies, in the form of a check or money order, from tenants and any
sums otherwise due Owner with respect to the Properties in the ordinary course
of business. Owner authorizes Manager to request, demand, collect and provide
receipts for all such rent and other monies and to institute legal proceedings
in the name of Owner for the collection thereof and for the dispossession of any
tenant in default under its Lease.
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(i) Banking Accommodations. Manager shall establish and
maintain a separate checking account in the Owner's name and controlled by
Manager subject to the provisions of this Management Agreement, (the "Account")
for funds relating to the Properties. All monies deposited from time to time in
the Account shall be and remain the property of Owner and shall be withdrawn and
disbursed by Manager for the account of Owner only as expressly permitted by
this Management Agreement for the purposes of performing the obligations of
Manager hereunder. No monies collected by Manager on Owner's behalf shall be
commingled with funds of Manager. The Account shall be maintained, and monies
shall be deposited therein and withdrawn therefrom, in accordance with the
following:
(i) All sums received from rents and other income from the
Properties shall be promptly deposited by Manager in the Account. Manager shall
have the right to designate two or more persons who shall be authorized to draw
against the Account, but only for purposes authorized by this Management
Agreement.
(ii) All sums due to Manager hereunder, whether for
compensation, reimbursement for expenditures, or otherwise, as herein provided,
shall be a charge against the operating revenues of the Properties and shall be
paid and/or withdrawn by Manager from the Account prior to the making of any
other disbursements therefrom.
(iii) By the 15th day after the end of each month, Manager
shall forward to Owner all monies contained in the Account other than a
reasonable minimum balance (to be determined jointly by Manager and Owner from
time to time) and any other amounts otherwise provided in the budget, which
shall remain in the Account.
(j) Ownership Agreements. Manager has received copies of (and
will be provided with copies of future) articles of incorporation, agreements of
limited partnership, joint venture partnership agreements and operating
agreements, each as may be amended from time to time, of Owner, as applicable
(the "Ownership Agreements") and is familiar with the terms thereof. Manager
shall use reasonable care to avoid any act or omission that, in the performance
of its duties hereunder, shall in any way conflict with the terms of Ownership
Agreements.
(k) Signs. Manager shall place and remove, or cause to be
placed and removed, such signs upon the Properties as Manager deems appropriate,
subject, however, to the terms and conditions of the Leases and to any
applicable ordinances and regulations.
2.4 Approval of Leases, Contracts, Etc. In fulfilling its duties to Owner,
Manager may and hereby is authorized to enter into any leases, contracts or
agreements on behalf of Owner in the ordinary course of the management,
operation, maintenance and leasing of the Property.
2.5 Accounting, Records and Reports.
(a) Records. Manager shall maintain all office records and
books of account and shall record therein, and keep copies of, each invoice
received from services, work and supplies ordered in connection with the
maintenance and operation of the Properties. Such records shall be maintained on
a double entry basis. Owner and persons designated by Owner shall at all
reasonable times have access to and the right to audit and make independent
examinations of such records, books and accounts and all vouchers, files and all
other material pertaining to the Properties and this Management Agreement, all
of which Manager agrees to keep safe, available and separate from any records
not pertaining to the Properties, at a place recommended by Manager and approved
by Owner.
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(b) Monthly Reports. On or before the 15th day after the end
of each month during the term of this Management Agreement, Manager shall
prepare and submit to Owner the following reports and statements:
(i) rental collection record;
(ii) monthly operating statement;
(iii) copy of cash disbursements ledger entries for such
period, if requested;
(iv) copy of cash receipts ledger entries for such period,
if requested;
(v) the original copies of all contracts entered into by
Manager on behalf of Owner during such period, if requested; and
(vi) copy of ledger entries for such period relating to
security deposits maintained by Manager, if requested.
(c) Budgets and Leasing Plans. Not later than November 15 of
each calendar year, Manager shall prepare and submit to Owner for its approval
an operating budget and a marketing and leasing plan on each Property for the
calendar year immediately following such submission. In connection with any
acquisition of a Property by Owner, Manager shall prepare a budget and marketing
and leasing plan for the remainder of the calendar year. The budget and
marketing and leasing plan shall be in the form of the budget and plan approved
by Owner prior to the date thereof. As often as reasonably necessary during the
period covered by any such budget, Manager may submit to Owner for its approval
an updated budget or plan incorporating such changes as shall be necessary to
reflect cost over-runs and the like during such period. If Owner does not
disapprove any such budget within 30 days after receipt thereof by Owner, such
budget shall be deemed approved. If Owner shall disapprove any such budget or
plan, it shall so notify Manager within said 30-day period and explain the
reasons therefor. If Owner disapproves of any budget or plan, Manager shall
submit a revised budget or plan, as applicable, within 10 (ten) days of receipt
of the notice of disapproval, and Owner shall have 10 (ten) days to provide
notice to Manager if it disapproves of any such revised budget or plan. Manager
will not incur any costs other than those estimated in any budget except for:
(i) tenant improvements and real estate commissions required
under a Lease;
(ii) maintenance or repair costs under $10,000 per Property;
(iii) costs incurred in emergency situations in which action
is immediately necessary for the preservation or safety of the Property, or for
the safety of occupants or other persons (or to avoid the suspension of any
necessary service of the Property);
(iv) expenditures for real estate taxes and assessment; and
(v) maintenance supplies calling for an aggregate purchase
price less than $25,000 per annum for all Properties.
Budgets prepared by Manager shall be for planning and informational
purposes only, and Manager shall have no liability to Owner for any failure to
meet any such budget. However, Manager will use its best efforts to operate
within the approved budget.
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(d) Legal Requirements. Manager shall execute and file when
due all forms, reports, and returns required by law relating to the employment
of its personnel. Manager shall be responsible for notifying Owner in the event
it receives notice that any Improvement on a Property or any equipment therein
does not comply with the requirements of any statute, ordinance, law or
regulation of any governmental body or of any public authority or official
thereof having or claiming to have jurisdiction thereover. Manager shall
promptly forward to Owner any complaints, warnings, notices or summonses
received by it relating to such matters. Owner represents that to the best of
its knowledge each of its Properties and any equipment thereon will upon
acquisition by Owner comply with all such requirements. Owner authorizes Manager
to disclose the ownership of the Property by Owner to any such officials. Owner
agrees to indemnify, protect, defend, save and hold Manager and its
stockholders, officers, directors, employees, managers, successors and assigns
(collectively, the "Indemnified Parties") harmless of and from any and all
Losses (as defined in Section 3.5(a) hereof) that may be imposed on them or any
or all of them by reason of the failure of Owner to correct any present or
future violation or alleged violation of any and all present or future laws,
ordinances, statutes, or regulations of any public authority or official
thereof, having or claiming to have jurisdiction thereover, of which it has
actual notice.
ARTICLE III
AUTHORITY GRANTED TO MANAGER AND CERTAIN OWNER OBLIGATIONS
3.1 Authority As To Tenants, Etc. Owner agrees and does hereby give Manager the
following exclusive authority and powers (all of which shall be exercised either
in the name of Manager, as Manager for Owner, or in the name or Owner entered
into by Manager as Owner's authorized agent, and Owner shall assume all expenses
in connection with such matters):
(a) to advertise each Property or any part thereof and to
display signs thereon, as permitted by law;
(b) to lease the Properties to tenants;
(c) to pay all expenses of leasing such Property, including
but not limited to, newspaper and other advertising, signage, banners,
brochures, referral commissions, leasing commissions, finder's fees and
salaries, bonuses and other compensation of leasing personnel responsible for
the leasing of the Property;
(d) to cause references of prospective tenants to be
investigated, it being understood and agreed by the parties hereto that Manager
does not guarantee the creditworthiness or collectibility of accounts receivable
from tenants, users or lessees; and to negotiate new Leases and renewals and
cancellations of existing Leases that shall be subject to Manager obtaining
Owner's approval;
(e) to collect from tenants all or any of the following: a
late rent administrative charge, a non-negotiable check charge, credit report
fee, a subleasing administrative charge and/or broker's commission; and Manager
need not account for such charges and/or commission to Owner;
(f) to terminate tenancies and to sign and serve in the name
of Owner of each Property such notices as are deemed necessary by Manager:
(i) to institute and prosecute actions to evict tenants
and to recover possession of the Property or portions thereof; and
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(ii) with Owner's authorization, to xxx for and in the
name of Owner and recover rent and other sums due; and to settle, compromise,
and release such actions or suits, or reinstate such tenancies. All expenses of
litigation including, but not limited to, attorneys' fees, filing fees, and
court costs that Manager shall incur in connection with the collecting of rent
and other sums, or to recover possession of any Property or any portion thereof,
shall be deemed to be an operational expense of the Property. Manager and Owner
shall concur on the selection of the attorneys to handle such litigation.
3.2 Operational Authority. Owner agrees and does hereby give Manager the
following exclusive authority and powers (all of which shall be exercised either
in the name of Manager, as Manager for Owner, or in the name or Owner entered
into by Manager as Owner's authorized agent, and Owner shall assume all expenses
in connection with such matters):
(a) to hire, supervise, discharge, and pay all labor required
for the operation and maintenance of each Property including but not limited to
on-site personnel, managers, assistant managers, leasing consultants, engineers,
janitors, maintenance supervisors and other employees required for the operation
and maintenance of the Property, including personnel spending a portion of their
working hours (to be charged on a pro rata basis) at the Property. All expenses
of such employment shall be deemed operational expenses of the Property.
(b) to make or cause to be made all ordinary repairs and
replacements necessary to preserve each Property in its present condition and
for the operating efficiency thereof and all alterations required to comply with
lease requirements, and to decorate the Property;
(c) to negotiate and enter into, as Manager of the Property,
contracts for all items on budgets that have been approved by Owner, any
emergency services or repairs for items not exceeding $10,000, appropriate
service agreements and labor agreements for normal operation of the Property,
which have terms not to exceed three years, and agreements for all budgeted
maintenance, minor alterations, and utility services, including, but not limited
to, electricity, gas, fuel, water, telephone, window washing, scavenger service,
landscaping, snow removal, pest exterminating, decorating and legal services in
connection with the Leases and service agreements relating to the Property, and
other services or such of them as Manager may consider appropriate; and
(d) to purchase supplies and pay all bills.
Manager shall use its best efforts to obtain the foregoing services and
utilities for the Property under terms that are as cost-effective and otherwise
favorable to Manager as possible for the quality of services and utilities
required. Owner hereby appoints Manager as Owner's authorized Manager for the
purpose of executing, as Manager for said Owner, all such contracts. In
addition, Owner agrees to specifically assume in writing all obligations under
all such contracts so entered into by Manager, on behalf of Owner of the
Property, upon the termination of this Manager Agreement, and Owner shall
indemnify, protect, save, defend and hold Manager and the other Indemnified
Parties harmless from and against any and all Losses resulting from, arising out
of or in any way related to such contracts and that relate to or concern matters
occurring after termination of this Management Agreement, but excluding matters
arising out of Manager's willful misconduct, gross negligence and/or unlawful
acts. Manager shall secure the written approval of appropriate contracts by
Owner for any non-budgeted and non-emergency/contingency capital items,
alterations or other expenditures in excess of $10,000 for any one item,
securing for each item at least three written bids, if practicable, or providing
evidence satisfactory to Owner, including such reasonable actions taken by the
Manager, that the contract amount is lower than industry standard pricing, from
responsible contractors. Manager shall have the right from time to time during
the term hereof, to contract with and make purchases from Affiliates of Manager,
provided that contract rates and prices are competitive with other available
sources. Manager may at any time and from time to time request and
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receive the prior written authorization of Owner of the Property of any one or
more purchases or other expenditures, notwithstanding that Manager may otherwise
be authorized hereunder to make such purchases or expenditures.
3.3 Rent and Other Collections. Owner agrees and does hereby give Manager the
exclusive authority and powers (all of which shall be exercised either in the
name of Manager, as Manager for Owner, or in the name or Owner entered into by
Manager as Owner's authorized agent, and Owner shall assume all expenses in
connection with such matters) to collect rents and/or assessments and other
items, including but not limited to tenant payments for real estate taxes,
property liability and other insurance, damages and repairs, common area
maintenance, tax reduction fees and all other tenant reimbursements,
administrative charges, proceeds of rental interruption insurance, parking fees,
income from coin operated machines and other miscellaneous income, due or to
become due and give receipts therefor and to deposit all such Gross Revenue
collected hereunder in the Account. Manager may endorse any and all checks
received in connection with the operation of any Property and drawn to the order
of Owner, and Owner shall, upon request, furnish Manager's depository with an
appropriate authorization for Manager to make such endorsement. Manager shall
also have the exclusive authority to collect and handle tenants' security
deposits, including the right to apply such security deposits to unpaid rent,
and to comply, on behalf of Owner of the Property, with applicable state or
local laws concerning security deposits and interest thereon, if any. Manager
shall not be required to advance any monies for the care or management of any
Property. Owner agrees to advance all monies necessary therefor. If Manager
shall elect to advance any money in connection with a Property, as permitted by
applicable law, Owner agrees to reimburse Manager forthwith and hereby
authorizes Manager to deduct such advances from any monies due Owner. In
connection with any insured losses or damages relating to any Property, Manager
shall have the exclusive authority to handle all steps necessary regarding any
such claim; provided that Manager will not make any adjustments or settlements
in excess of $10,000 without Owner's prior written consent.
3.4 Payment of Expenses. Owner agrees and does hereby give Manager the exclusive
authority and power (all of which shall be exercised either in the name of
Manager, as Manager for Owner, or in the name or Owner entered into by Manager
as Owner's authorized agent, and Owner shall assume all expenses in connection
with such matters) to pay all expenses of the Property from the Gross Revenue
collected in accordance with Section 3.3 above, from the Account. It is
understood that the Gross Revenue will be used first to pay the compensation to
Manager as contained in Article 5 below, then operational expenses and then any
mortgage indebtedness, including real estate tax and insurance impounds, but
only as directed by Owner in writing and only if sufficient Gross Revenue is
available for such payments. Nothing in this Management Agreement shall be
interpreted in such a manner as to obligate Manager to pay from Gross Revenue,
any expenses incurred by Owner prior to the commencement of this Management
Agreement, except to the extent Owner advances additional funds to pay such
expenses.
3.5 Certain Owner Indemnification Obligations.
(a) On Termination. Subject to the requirements of Section 6.5
hereof, in the event this Management Agreement is terminated for any reason
prior to the expiration of its original term or any renewal term, Owner shall
indemnify, protect, defend, save and hold Manager and all of the other
Indemnified Parties harmless from and against any and all claims, causes of
action, demands, suits, proceedings, loss, judgments, damage, awards, liens,
fines, costs, attorney's fees and expenses, of every kind and nature whatsoever
(collectively, "Losses"), that may be imposed on or incurred by Manager by
reason of the willful misconduct, gross negligence and/or unlawful acts (such
unlawfulness having been adjudicated by a court of proper jurisdiction) of
Owner.
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(b) Property Damage, Etc. Subject to the requirements of
Section 6.5 hereof, Owner agrees to indemnify, defend, protect, save and hold
Manager and all of the other Indemnified Parties harmless from any and all
Losses in connection with or in any way related to the Property and from
liability for damage to the Property and injuries to or death of any person
whomsoever, and damage to property; provided, however, that such indemnification
shall not extend to any such Losses arising out of the misconduct, negligence or
unlawful acts (such unlawfulness having been adjudicated by a court of proper
jurisdiction) of Manager or any of the other Indemnified Parties. Manager shall
not be liable for any error of judgment or for any mistake of fact or law, or
for any thing that it may do or refrain from doing, except in cases of
misconduct, negligence or unlawful acts (such unlawfulness having been
adjudicated by a court of proper jurisdiction).
3.6 Environmental Matters. Owner hereby warrants and represents to Manager that
to the best of Owner's knowledge, no Property, upon acquisition by Owner, nor
any part thereof, will be used to treat, deposit, store, dispose of or place any
hazardous substance that may subject Manager to liability or claims under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C.A. Section 9607) or any constitutional provision, statute, ordinance, law,
or regulation of any governmental body or of any order or ruling of any public
authority or official thereof, having or claiming to have jurisdiction
thereover. Furthermore, Owner agrees to indemnify, protect, defend, save and
hold Manager and all of the other Indemnified Parties from any and all Losses
involving, concerning or in any way related to any past, current or future
allegations regarding treatment, depositing, storage, disposal or placement by
any party other than Manager of hazardous substances on the Property.
3.7 Legal Status of Properties. Owner represents that to the best of its
knowledge each Property and any equipment thereon, when acquired by Owner, will
comply with all legal requirements and authorizes Manager to disclose the
identity of the Owner of the Property to any such officials and agrees to
indemnify, protect, defend, save and hold Manager and the other Indemnified
Parties harmless of and from any and all Losses that may be imposed on them or
any of them by reason of the failure of Owner to correct any present or future
violation or alleged violation of any and all present or future laws,
ordinances, statutes, or regulations of any public authority or official
thereof, having or claiming to have jurisdiction thereover, of which it has
actual notice. In the event it is alleged or charged that any Improvement or any
equipment on a Property or any act or failure to act by Owner with respect to
the Property or the sale, rental, or other disposition thereof fails to comply
with, or is in violation of, any of the requirements of any constitutional
provision, statute, ordinance, law, or regulation of any governmental body or
any order or ruling of any public authority or official thereof having or
claiming to have jurisdiction thereover, and Manager, in its sole and absolute
discretion, considers that the action or position of Owner, with respect thereto
may result in damage or liability to Manager, Manager shall have the right to
cancel this Management Agreement at any time by written notice to Owner of its
election so to do, which cancellation shall be effective upon the service of
such notice. Such cancellation shall not release the indemnities of Owner set
forth in this Management Agreement and shall not terminate any liability or
obligation of Owner to Manager for any payment, reimbursement, or other sum of
money then due and payable to Manager hereunder.
3.8 Extraordinary Payments. Owner agrees to give adequate advance written notice
to Manager if Owner desires that Manager make any extraordinary payment, out of
Gross Revenue, to the extent funds are available after the payment of Manager's
compensation as provided for herein and all operational expenses, of mortgage
indebtedness, general taxes, special assessments, or fire, boiler or any other
insurance premiums.
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ARTICLE IV
EXPENSES
4.1 Owner's Expenses. Except as otherwise specifically provided, all costs and
expenses incurred hereunder by Manager in fulfilling its duties to Owner shall
be for the account of and on behalf of Owner. Such costs and expenses shall
include the wages and salaries and other employee-related expenses, unless
otherwise waived, in whole or in part, by the Manager in its sole discretion, of
all on-site and off-site employees of Manager who are engaged in the operation,
management, maintenance and leasing or access control of the Properties,
including taxes, insurance and benefits relating to such employees, and legal,
travel and other out-of-pocket expenses that are directly related to the
management of specific Properties. All costs and expenses for which Owner is
responsible under this Management Agreement shall be paid by Manager out of the
Account. In the event the Account does not contain sufficient funds to pay all
said expenses, Owner shall fund all sums necessary to meet such additional costs
and expenses.
4.2 Manager's Expenses. Manager shall, out of its own funds, pay all of its
general overhead and administrative expenses.
ARTICLE V
MANAGER'S COMPENSATION
5.1 Management Fees. Commencing on the date hereof, Owner shall pay Manager
property management and leasing fees in an amount equal to two percent (2.0%)
of Gross Revenues, less all payments to third-party property management
subcontractors (the "Management Fees") on a monthly basis from the rental income
received from the Properties over the term of this Management Agreement.
Manager's compensation under this Section 5.1 shall apply to all renewals,
extensions or expansions of Leases that Manager has originally negotiated. In
the event Manager assists with planning and coordinating the construction of any
tenant-paid finish-out or improvements, Manager shall be entitled to receive
from the Owner for any such tenant improvement an amount equal to not greater
than five percent (5.0%) of the cost of such tenant improvements.
5.2 Leasing Fees. In addition to the compensation paid to Manager under Section
5.1 above, Manager shall be entitled to receive a separate fee for the Leases of
new tenants and renewals of Leases with existing tenants in an amount not to
exceed the fee customarily charged in arm's length transactions by others
rendering similar services in the same geographic area for similar properties as
determined by a survey of brokers and agents in such area ("Leasing Fees").
5.3 Audit Adjustment. If any audit of the records, books or accounts relating to
the Properties discloses an overpayment or underpayment of Management Fees,
Owner or Manager shall promptly pay to the other party the amount of such
overpayment or underpayment, as the case may be. If such audit discloses an
overpayment of Management Fees for any fiscal year of more than the correct
Management Fees for such fiscal year, Manager shall bear the cost of such audit.
5.4 Additional Services. Any services beyond those specified herein, such as
sales, brokerage, loan origination and servicing, property tax reduction and
risk management services, shall be performed by Manager and compensated by Owner
only if the parties agree on the scope of such work and provided that the
compensation to be paid therefore will not exceed that which would be paid to
unrelated parties providing such services and provided further that all such
compensation must be approved by a majority of the directors, including a
majority of the independent directors (as defined in the charter of the Owner),
not otherwise interested in the transaction, of Owner.
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ARTICLE VI
INSURANCE AND INDEMNIFICATION
6.1 Insurance to be Carried.
(a) Manager shall obtain and keep in full force and effect
insurance on the Properties against such hazards as Owner and Manager shall deem
appropriate, but in any event insurance sufficient to comply with the Leases and
Ownership Agreements shall be maintained. All liability policies shall provide
sufficient insurance satisfactory to both Owner and Manager and shall contain
waivers of subrogation for the benefit of Manager.
(b) Manager shall obtain and keep in full force and effect, in
accordance with the laws of the state in which each Property is located,
employer's liability insurance applicable to and covering all employees of
Manager at the Properties and all persons engaged in the performance of any work
required hereunder, and Manager shall furnish Owner certificates of insurers
naming Owner as a co-insured and evidencing that such insurance is in effect. If
any work under this Management Agreement is subcontracted as permitted herein,
Manager shall include in each subcontract a provision that the subcontractor
shall also furnish Owner with such a certificate.
6.2 Insurance Expenses. Premiums and other expenses of such insurance, as well
as any applicable payments in respect of deductibles shall be borne by Owner.
6.3 Cooperation with Insurers. Manager shall cooperate with and provide
reasonable access to the Properties to representatives of insurance companies
and insurance brokers or agents with respect to insurance that is in effect or
for which application has been made. Manager shall use its best efforts to
comply with all requirements of insurers.
6.4 Accidents and Claims. Manager shall promptly investigate and shall report in
detail to Owner all accidents, claims for damage relating to Ownership,
operation or maintenance of the Properties, and any damage or destruction to the
Properties and the estimated costs of repair thereof, and shall prepare for
approval by Owner all reports required by an insurance company in connection
with any such accident, claim, damage, or destruction. Such reports shall be
given to Owner promptly, and any report not so given within 30 (thirty) days
after the occurrence of any such accident, claim, damage or destruction shall be
noted in the monthly operating statement delivered to Owner pursuant to Section
2.5(b). Manager is authorized to settle any claim against an insurance company
arising out of any policy and, in connection with such claim, to execute proofs
of loss and adjustments of loss and to collect and receipt for loss proceeds.
6.5 Indemnification. Manager shall hold Owner harmless from and indemnify and
defend Owner against any and all claims or liability for any injury or damage to
any person or property whatsoever for which Manager is responsible occurring in,
on, or about the Properties, including, without limitation, the Improvements
when such injury or damage shall be caused by the negligence of Manager, its
agents, servants, or employees, except to the extent that Owner recovers
insurance proceeds with respect to such matter. Owner will indemnify and hold
Manager harmless against all liability for injury to persons and damage to
property caused by Owner's negligence and which did not result from the
negligence of misconduct of Manager, except to the extent Manager recovers
insurance proceeds with respect to such matter. Notwithstanding the foregoing,
if the person seeking indemnification under this Section 6.5 is an Affiliate,
such person's right to indemnification is subject to any limitations imposed
under Section 13.2 and Section 13.3 of the Company's Articles of Incorporation
or any amendments thereto.
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ARTICLE VII
TERM AND TERMINATION
7.1 Term. This Management Agreement shall commence on the date first above
written and shall continue until the first (1st) anniversary of such date.
Thereafter, this Management Agreement may be renewed for an unlimited number of
successive one-year terms upon mutual consent of the parties. Each such renewal
shall be for a term of no more than one year. It is the duty of the Board of
Directors to evaluate the performance of the Manager annually before renewing
this Management Agreement. In addition, either party may terminate this
Management Agreement immediately upon the occurrence of any of the following:
(a) A decree or order is rendered by a court having
jurisdiction (i) adjudging Manager as bankrupt or insolvent, or (ii) approving
as properly filed a petition seeking reorganization, readjustment, arrangement,
composition or similar relief for Manager under the federal bankruptcy laws or
any similar applicable law or practice, or (iii) appointing a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of Manager or a
substantial part of the property of Manager, or for the winding up or
liquidation of its affairs, or
(b) Manager (i) institutes proceedings to be adjudicated a
voluntary bankrupt or an insolvent, (ii) consents to the filing of a bankruptcy
proceeding against it, (iii) files a petition or answer or consent seeking
reorganization, readjustment, arrangement, composition or relief under any
similar applicable law or practice, (iv) consents to the filing of any such
petition, or to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency for it or for a substantial part of its
property, (v) makes an assignment for the benefit of creditors, (vi) is unable
to or admits in writing its inability to pay its debts generally as they become
due unless such inability shall be the fault of the other party, or (iv) takes
corporate or other action in furtherance of any of the aforesaid purposes.
Upon any termination pursuant to this Section 7.1, the provisions and
obligations of this Management Agreement shall be deemed terminated, except that
the obligation of the parties for fees due between one another and the
obligations of indemnity set forth herein shall survive such termination.
Manager shall cooperate with Owner in transfers of management and accounting
functions hereunder.
7.2 Manager's Obligations Upon Termination. Upon the termination of this
Management Agreement, Manager shall have the following duties:
(a) Manager shall deliver to Owner or its designee, all books
and records with respect to the Properties.
(b) Manager shall transfer and assign to Owner, or its
designee, all service contracts and personal property relating to or used in the
operation and maintenance of the Properties, except personal property paid for
and owned by Manager. Manager shall also, for a period of sixty (60) days
immediately following the date of such termination, make itself available to
consult with and advise Owner, or its designee, regarding the operation,
maintenance and leasing of the Properties.
(c) Manager shall render to Owner an accounting of all funds
of Owner in its possession and shall deliver to Owner a statement of all
Management Fees claimed to be due to Manager and shall cause funds of Owner held
by Manager relating to the Properties to be paid to Owner or its designee.
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7.3 Owner's Obligations Upon Termination. Owner shall pay or reimburse Manager
for any sums of money due it under this Management Agreement for services and
expenses prior to termination of this Management Agreement. All provisions of
this Management Agreement that require Owner to have insured, or to protect,
defend, save, hold and indemnify or to reimburse Manager shall survive any
expiration or termination of this Management Agreement and, if Manager is or
becomes involved in any claim, proceeding or litigation by reason of having been
Manager of Owner, such provisions shall apply as if this Management Agreement
were still in effect.
The parties understand and agree that Manager may withhold funds for sixty (60)
days after the end of the month in which this Management Agreement is terminated
to pay bills previously incurred but not yet invoiced and to close accounts.
Should the funds withheld be insufficient to meet the obligation of Manager to
pay bills previously incurred, Owner will, upon demand, advance sufficient funds
to Manager to ensure fulfillment of Manager's obligation to do so, within ten
(10) days of receipt of notice and an itemization of such unpaid bills.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices. All notices, approvals, consents and other communications hereunder
shall be in writing, and, except when receipt is required to start the running
of a period of time, shall be deemed given when delivered in person or on the
fifth day after its mailing by either party by registered or certified United
States mail, postage prepaid and return receipt requested, to the other party,
at the addresses set forth after their respect name below or at such different
addresses as either party shall have theretofore advised the other party in
writing in accordance with this Section 8.1.
Owner: XXXX OPERATING PARTNERSHIP II, LP
c/x Xxxx Credit Property Trust II, Inc.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Partner
Manager: FUND REALTY ADVISORS, INC.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
8.2 Governing Law; Venue. This Management Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona, and any action
brought to enforce the agreements made hereunder or any action which arises out
of the relationship created hereunder shall be brought exclusively in Maricopa
County, Arizona.
8.3 Assignment. Manager may delegate partially or in full its duties and rights
under this Management Agreement but only with the prior written consent of
Owner. Owner acknowledges and agrees that any or all of the duties of Manager as
contained herein may be delegated by Manager and performed by a person or entity
("Submanager") with whom Manager contracts for the purpose of performing such
duties. Owner specifically grants Manager the authority to enter into such a
contract with a Submanager; provided that, unless Owner otherwise agrees in
writing with such Submanager, Owner shall have no liability or responsibility to
any such Submanager for the payment of the Submanager's fee or for reimbursement
to the Submanager of its expenses or to indemnify the Submanager in any manner
for any matter; and provided further that Manager shall require such Submanager
to agree, in the written agreement setting forth the duties and obligations of
such
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Submanager, to indemnify Owner for all Losses incurred by Owner as a result
of the willful misconduct or gross negligence of the Submanager, except that
such indemnity shall not be required to the extent that Owner recovers issuance
proceeds with respect to such matter. Any contract entered into between Manager
and a Submanager pursuant to this Section 8.3 shall be consistent with the
provisions of this Management Agreement, except to the extent Owner otherwise
specifically agrees in writing. This Management Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
8.4 Third Party Leasing Services. Manager acknowledges that from time to time
Owner may determine that it is in the best interests of Owner to retain a third
party to provide certain leasing services with respect to certain Properties and
to compensate such third party for such leasing services. Upon the prior written
consent of Manager, Owner shall have the authority to enter into such a contract
for leasing services with a third party (a "Third Party Leasing Agreement");
provided that Manager shall have no liability or responsibility to Owner for any
of the duties and obligations undertaken by such party, and Owner agrees to
indemnify Manager for all Losses incurred by Manager as a result of acts of such
third party pursuant to the Third Party Leasing Agreement. To the extent that
leasing services are specifically required to be performed by a third party
pursuant to such Third Party Leasing Agreement, Manager shall have no obligation
to perform such leasing services and Owner shall have no obligation to Manager
for leasing fees pursuant to Section 5.2 hereof. To the extent that both Manager
and such Third Party Leasing Agreement provides leasing services with respect to
certain Properties, the Leasing fees payable to Manager pursuant to Section 5.2
hereof shall be reduced by the amounts payable with respect to such Properties
to such Third Party Leasing Agreement.
8.5 Third Party Management Services. Manager acknowledges that from time to time
Owner may acquire interests in Properties in which Owner does not control the
determination of the party that is engaged to provide property management and
other services to be provided by Manager with respect to all Properties acquired
by Owner hereunder. Upon the prior written consent of Manager, Owner shall have
the authority to acquire such non-controlling interests in Properties for which
a third party provides some or all of the services otherwise required to be
performed by Manager hereunder (a "Third Party Management Agreement"); provided
that Manager shall have no liability or responsibility to Owner for any of the
duties and obligations undertaken by such third party, and Owner agrees to
indemnify Manager for all Losses incurred by Manager as a result of the acts of
such third party pursuant to the Third Party Management Agreement. To the extent
that property management and other services are specifically required to be
performed by a third party pursuant to such Third Party Management Agreement,
Manager shall have no obligation to perform such services and Owner shall have
no obligation to Manager for compensation for such services pursuant to Article
V hereof. To the extent that both Manager and such Third Party Leasing Agreement
provides leasing services with respect to certain Properties, the Leasing fees
payable to Manager pursuant to Section 5.2 hereof shall be reduced by the
amounts payable with respect to such Properties to such Third Party Leasing
Agreement.
8.6 No Waiver. The failure of Owner to seek redress for violation or to insist
upon the strict performance of any covenant or condition of this Management
Agreement shall not constitute a waiver thereof for the future.
8.7 Amendments. This Management Agreement may be amended only by an instrument
in writing signed by the party against whom enforcement of the amendment is
sought.
8.8 Headings. The headings of the various subdivisions of this Management
Agreement are for reference only and shall not define or limit any of the terms
or provisions hereof.
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8.9 Counterparts. This Management Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Management Agreement to produce or account for
more than one such counterpart.
8.10 Entire Agreement. This Management Agreement contains the entire
understanding and all agreements between Owner and Manager respecting the
management of the Properties. There are no representations, agreements,
arrangements or understandings, oral or written, between Owner and Manager
relating to the management of the Properties that are not fully expressed
herein.
8.11 Disputes. If there shall be a dispute between Owner and Manager relating to
this Management Agreement resulting in litigation, the prevailing party in such
litigation shall be entitled to recover from the other party to such litigation
such amount as the court shall fix as reasonable attorneys' fees.
8.12 Activities of Manager. The obligations of Manager pursuant to the terms and
provisions of this Management Agreement shall not be construed to preclude
Manager from engaging in other activities or business ventures, whether or not
such other activities or ventures are in competition with Owner or the business
of Owner.
8.13 Independent Contractor. Manager and Owner shall not be construed as joint
venturers or partners of each other pursuant to this Management Agreement, and
neither shall have the power to bind or obligate the other except as set forth
herein. In all respects, the status of Manager to Owner under this Management
Agreement is that of an independent contractor.
8.14 No Third-Party Rights. Nothing expressed or referred to in this Management
Agreement will be construed to give any Person other than the parties to this
Management Agreement any legal or equitable right, remedy or claim under or with
respect to this Management Agreement or any provision of this Management
Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to Section 8.3.
8.15 Ownership of Proprietary Property. The Manager retains ownership of and
reserves all Intellectual Property Rights in the Proprietary Property. To the
extent that Owner has or obtains any claim to any right, title or interest in
the Proprietary Property, including without limitation in any suggestions,
enhancements or contributions that Owner may provide regarding the Proprietary
Property, Owner hereby assigns and transfers exclusively to the Manager all
right, title and interest, including without limitation all Intellectual
Property Rights, free and clear of any liens, encumbrances or licenses in favor
of Owner or any other party, in and to the Proprietary Property. In addition, at
the Manager's expense, Owner will perform any acts that may be deemed desirable
by the Manager to evidence more fully the transfer of ownership of right, title
and interest in the Proprietary Property to the Manager, including but not
limited to the execution of any instruments or documents now or hereafter
requested by the Manager to perfect, defend or confirm the assignment described
herein, in a form determined by the Manager.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Property Management
and Leasing Agreement as of the date first above written.
XXXX CREDIT PROPERTY TRUST II, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
--------------------------------------
Xxxxxxxxxxx X. Xxxx
Chief Executive Officer and President
XXXX OPERATING PARTNERSHIP II, LP
By: Xxxx Credit Property Trust, Inc.
General Partner
By: /s/ Xxxxxxxxxxx X. Xxxx
--------------------------------
Xxxxxxxxxxx X. Xxxx
Chief Executive Officer and President
FUND REALTY ADVISORS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
------------------------------
Xxxxxxxxxxx X. Xxxx
Chief Executive Officer and President
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