EXHIBIT 10.12
MANAGEMENT AND LEASING SUBCONTRACT
BETWEEN
XXXXXXX PARTNERS - GLENDALE, LLC
AND
XXXXXXX PROPERTIES, L.P.
DATED: AS OF JUNE 27, 2003
TABLE OF CONTENTS
1. Services to be Performed by Subcontractor................................2
1.1 Specific Services..................................................2
1.2 Method of Performing Services......................................3
1.3 Independent Contractor.............................................3
1.4 Trust and Confidence...............................................3
1.5 Budgets and Reports................................................3
2. Leasing Responsibilities.................................................4
2.1 Commissions for Leases; Sale or Transfer...........................4
2.2 License............................................................4
3. Financial Matters........................................................4
4. Compensation of Subcontractor............................................4
4.1 Compensation.......................................................4
4.2 Employee Compensation..............................................4
4.3 Reimbursable Expenses..............................................4
4.4 Non-Reimbursable Expenses..........................................4
4.5 Payment of Compensation and Expenses...............................5
5. Indemnification Insurance................................................5
5.1 Subcontractor's Indemnity..........................................5
5.2 Subcontractor's Insurance..........................................5
5.3 Third Party Indemnity..............................................6
5.4 Property Manager's Indemnity.......................................6
6. Term of Agreement........................................................7
6.1 Term...............................................................7
6.2 Obligations Upon Termination.......................................7
7. General Provisions.......................................................8
7.1 Notices............................................................8
7.2 Attorneys' Fees....................................................9
7.3 Non-Assignability..................................................9
7.4 Amendments........................................................10
7.5 Governing Law.....................................................10
7.6 Cooperation.......................................................10
7.7 Waiver of Rights..................................................10
7.8 Successors and Assigns............................................10
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7.9 Subordination.....................................................10
7.10 No Recourse.......................................................10
7.11 Severability......................................................10
7.12 No Third Party Beneficiary........................................10
7.13 Definitions.......................................................11
7.14 No Lien...........................................................11
7.15 Integration.......................................................11
7.16 Trademark.........................................................11
7.17 Interest..........................................................11
8. Arbitration.............................................................11
EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION OF LAND
EXHIBIT "B" MANAGEMENT AGREEMENT
ii
GLOSSARY OF DEFINED TERMS
"Agreement" Page 1
"Affiliate" Section 7.13
"Affiliates" Section 7.13
"BARSI" Page 1
"Company" Page 1
"Improvements" Page 1
"Land" Page 1
"Management Agreement" Page 1
"Xxxxxxx Services Section 1.2
"Notice" Section 7.1
"Operating Agreement" Page 1
"Owner" Page 1
"Person" Section 7.13
"Phase I" Page 1
"Property Manager" Page 1
"Services" Section 1.1
1
MANAGEMENT AND LEASING SUBCONTRACT
THIS MANAGEMENT AND LEASING SUBCONTRACT (the "AGREEMENT") is made as of
the 27th day of June, 2003, by and between XXXXXXX PARTNERS - GLENDALE, LLC, a
California limited liability company ("PROPERTY MANAGER") and XXXXXXX
PROPERTIES, L.P., a Maryland limited partnership ("SUBCONTRACTOR") with respect
to the following:
RECITALS
X. Xxxxxxx Partners-611 N. Brand, LLC, a Delaware limited liability
company (the "OWNER") is the successor-in-interest to Xxxxxxx Partners-Glendale
Center, LLC, a California limited liability company (the "COMPANY") as the fee
owner of a parcel of land in Glendale, California described in Exhibit "A"
attached hereto (the "LAND") which is improved with a sixteen story (including
two below-ground levels) office building, a parking garage, surface parking, and
an adjacent retail building (collectively, the "IMPROVEMENTS"). The Land and the
Improvements are sometimes collectively referred to herein as "PHASE I;"
B. The Company is a California limited liability company comprised of
Property Manager and BankAmerica Realty Services, Inc. ("BARSI") formed pursuant
to an Amended and Restated Operating Agreement dated March 5, 1996, as amended
by that certain Amendment to Amended and Restated Operating Agreement dated
December 11, 2000 ("OPERATING AGREEMENT") and is the sole member of Owner;
C. Owner, as successor-in-interest to the Company as the owner of Phase
I, and Property Manager are the parties to that certain Management and Leasing
Agreement dated as of November 1, 1995 as amended by that certain Amendment to
Management and Leasing Agreement dated December 11, 2000 (the "MANAGEMENT
AGREEMENT") whereby Property Manager has been engaged to lease, manage and
operate Phase I. A copy of the Management Agreement is attached hereto as
Exhibit "A". All capitalized terms used herein and not defined herein shall have
the meanings given to such terms in the Management Agreement; and
D. Property Manager desires to engage Subcontractor to perform its
obligations and duties under the Management Agreement and Subcontractor desires
to accept such engagement upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants contained herein, owner and Property Manager and
Subcontractor agree as follows:
1. Services to be Performed by Subcontractor.
1.1 Specific Services. Property Manager hereby engages Subcontractor to
perform, and Subcontractor hereby agrees to perform (or cause to be performed)
all of the services and satisfy all of the duties and obligations of Property
Manager described in the Management Agreement (collectively, the "SERVICES"),
except those duties described in the first sentence of Section 7.1 of the
Management Agreement.
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1.2 Method of Performing Services. Subcontractor shall perform the
Services in accordance with the requirements of the Management Agreement but
Subcontractor will determine the method, details and means of performing the
Services. Furthermore, Subcontractor may elect to subcontract with Xxxxxxx
Properties Services, Inc., a Maryland corporation ("XXXXXXX SERVICES"), a
wholly-owned subsidiary of Subcontractor, or another Affiliate (as defined in
Section 7.13) of Subcontractor, to perform certain of the Services.
Notwithstanding any contrary provisions of this Agreement, without first
obtaining the prior written consent of owner and Property Manager, Subcontractor
shall not:
(a) Make any expenditure not approved by owner as part of the
Approved Budget or as otherwise permitted by the Management Agreement;
(b) Enter into, create, or suffer to exist any lease, lien,
encumbrance or charge upon all or any portion of Phase I or any interest
therein;
(c) Enter into, modify, amend, change, cancel, or otherwise alter
or allow the alteration of the terms of any lease with respect to any portion of
Phase I;
(d) Alter or materially deviate from the marketing plan described
in Section 4.4 of the Management Agreement once such marketing plan has been
approved by Owner; or
(e) Perform or fail to perform any act which constitutes a Major
Decision or that requires BARSI's separate consent under the Operating Agreement
without the Members' or BARSI's approval, as applicable.
1.3 Independent Contractor. It is expressly understood and agreed that
Subcontractor, and any of its Affiliates performing services on its behalf, are
independent contractors under this Agreement. It is expressly understood and
agreed by the parties hereto that either party may engage in any other business
or investment, including the ownership of or investment in real estate and the
development, operation and management of office, commercial retail buildings,
and that the other party hereto shall have no rights in and to any such business
or investment or the income or profit derived therefrom.
1.4 Trust and Confidence. This Agreement establishes a relationship of
trust and confidence between Property Manager and Subcontractor. Accordingly,
Subcontractor shall furnish its best skill and judgment in the performance of
the Services so as to achieve a high degree of cost efficiency while maintaining
quality performance and shall cooperate with the Company, Owner and Property
Manager in protecting and furthering the best interests of the Company, Owner
and Property Manager regarding the management of Phase I.
1.5 Budgets and Reports. Subcontractor shall, concurrent with delivery
to Owner of any and all budgets, reports, notices, requests for approval and
other documents required to be delivered or submitted to Owner pursuant to the
Management Agreement, deliver copies of such budgets, reports, notices, requests
for approval and other documents to Property Manager.
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2. Leasing Responsibilities.
2.1 Commissions for Leases; Sale or Transfer. Subcontractor shall be
paid for its Services as the leasing agent for Phase I in the same amounts and
in the same manner as Property Manager is paid for such Services under the
Management Agreement.
2.2 License. Subcontractor shall either be licensed or delegate its
duties hereunder to an Affiliate) of Subcontractor that is licensed as a
California Real Estate Broker which, shall comply with all requirements and
regulations of the California Department of Real Estate.
3. Financial Matters.
The Working Fund Account shall be in a separate bank account in Owner's
name established by Property Manager or Subcontractor at the Bank. Property
Manager shall execute such documents as are necessary or expedient to authorize
Subcontractor to sign checks to withdraw funds from the Working Fund Account so
that Subcontractor can fulfill its duties hereunder. All funds deposited in the
Working Fund Account shall be held in trust for Owner, and shall be disbursed in
accordance with the Management Agreement. No other funds of Property Manager or
Subcontractor shall be deposited in the Working Fund Account. Subcontractor
shall pay from the Working Fund Account all expenses of Phase I.
4. Compensation of Subcontractor.
4.1 Compensation. For its Services hereunder, Subcontractor shall be
paid a Management Fee and other compensation in the same amounts and in the same
manner as Property Manager is compensated for such Services under the Management
Agreement.
4.2 Employee Compensation. Employees of Subcontractor performing
services for Phase I under this Agreement shall be compensated on same basis and
to the same extent that Property Manager is compensated for its employees under
the Management Agreement.
4.3 Reimbursable Expenses. In accordance with the Approved Budget,
Subcontractor shall be entitled to reimbursement from Property Manager for all
direct out-of-pocket expenses including, but not limited to, normal office
expenses and normal business expenses associated with operating an on-site
business office at Phase I (to the extent operated by Subcontractor, Xxxxxxx
Services or their Affiliates). Further, Property Manager shall provide for
Subcontractors use of the management office in Phase I referred to in Section
8.3 of the Management Agreement, which shall be utilized directly for the
benefit of Phase I, together with the high speed internet service, email,
telephone service, office janitorial service, printed forms and customary office
supplies and equipment (such as typewriters, computers, photocopying equipment
and calculators) referred to in Section 8.3 of the Management Agreement.
Subcontractor shall equitably allocate such costs to all projects managed out of
the same on-site office and Property Manager shall not be charged for any such
costs properly allocated to any projects other than Phase I.
4.4 Non-Reimbursable Expenses. Subcontractor shall bear, without
reimbursement, the same types of expenses or costs it incurs in connection with
its services under this Agreement, as Property Manager is required to bear in
connection with its services under the
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Management Agreement (including, without limitation, (i) gross salary and wages,
payroll taxes, insurance, workers' compensation, and other benefits of
Subcontractor's office personnel not employed on site of Phase I and not
employed as approved special personnel as provided in Section 4.2(b), (ii)
general accounting and reporting services which are considered to be within the
reasonable scope of Subcontractors responsibility under this Agreement, (iii)
costs of forms, papers, ledgers, and other supplies and equipment used in
Subcontractor's office at any location off Phase I and not used for Phase I and
rent for Subcontractor's offices located off Phase I, (iv) cost of local travel
by Subcontractor's employees and agents to and from Phase I, (v) losses arising
from gross negligence or fraud on the part of Subcontractor, or Subcontractor's
employees, officers or agents or from acts outside the scope of Subcontractor's
authority hereunder and (vi) costs directly attributable to the development of
Subsequent Phases, including any pre-development costs or transfer costs
contemplated by the Subsequent Phase Agreement or Operating Agreement).
4.5 Payment of Compensation and Expenses. Payment or reimbursement of
the amounts described in Sections 4.1 and 4.2 above shall be made at the same
time and in the same manner as Property Manager receives such payment or
reimbursement under the Management Agreement. A detailed summary of all
reimbursable expenses shall be included on Subcontractor's monthly accounting to
Property Manager and Owner.
5. Indemnification Insurance.
5.1 Subcontractor's Indemnity. Subcontractor shall indemnify and save
Property Manager and each member of Property Manager harmless from and defend it
against any and all liabilities and claims, and reimburse it for all expenses it
incurs (including the cost of litigation and reasonable attorneys' fees) on
account of personal injury or death to persons and damage to property which
occurs on Phase I, to the extent caused by willful misconduct or gross
negligence of Subcontractor or any persons employed by it hereunder, or by
anyone employed by such persons or otherwise relating to the performance of
Subcontractor's duties hereunder to the extent such liabilities and claims are
insured by Subcontractor's insurance carried pursuant to Section 5.2 or arise
out of the breach of Subcontractor's duties or obligations under this Agreement
or acts outside the scope of Subcontractor's authority hereunder. This Section
5.1 shall survive the expiration or earlier termination of this Agreement.
5.2 Subcontractor's Insurance. During the term of this Agreement,
Subcontractor (as a reimbursable expense under this Agreement) and independent
contractors employed by Subcontractor hereunder (at such contractor's expense)
shall maintain in full force and effect the amounts and types of insurance
covering its respective operations in the State of California as are required to
be carried and maintained by Property Manager under the Management Agreement.
(a) Such insurance coverage shall be subject to Property Manager's
and Owner's or the Company's approval for carriers and adequacy of protection
and Owner or the Company may elect to insure Subcontractor under policies
carried by Owner. If Owner or the Company does not elect to insure Subcontractor
under Owner's policies, Subcontractor's policies shall name Property Manager,
Owner, the Company and their members, as well as all lenders designated by
Property Manager as additional insureds.
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5.3 Third Party Indemnity. Subcontractor shall require that all persons
it employs hereunder (other than common law employees) indemnify and save
Property Manager, the Company, Owner, Subcontractor and their respective
members, partners, officers, directors, agents, employees, and affiliates
harmless from, and defend them against, all liabilities, losses and claims, and
reimburse them for all expenses they incur (including the costs of litigation
and reasonable attorneys' fees) on account of personal injury or death to
persons and damage to property which occurs on Phase I, to the extent caused by
the misconduct or wrongful or negligent act or omission of such independent
contractor, or employees or agents of such independent contractor, arising from
or related to the performance of work or services it performs on or about Phase
I, or from such contractor's property, breach of its contract with Subcontractor
or acts outside the scope of its authority under its agreement with
Subcontractor. Each independent contractor that Subcontractor employs hereunder
shall pay for and defend any and all suits or actions threatened or instituted
against Owner, the Company, Property Manager, Subcontractor or their respective
members, partners, officers, directors, agents, employees and affiliates and
shall pay all reasonable attorneys' fees, litigation costs and all other
expenses in connection therewith, and shall promptly discharge any judgments
arising therefrom. These conditions shall also apply to any work or operations
subcontracted by such contractors. Such provisions shall expressly survive the
expiration of any contracts in which they are contained.
5.4 Property Manager's Indemnity.
(a) Subject to Sections 5.1 and 5.3, to the extent of any
indemnity in favor of Property Manager from Owner under the Management
Agreement, Property Manager shall indemnify and save Subcontractor harmless from
and defend it against all claims and liabilities, and reimburse it for all
expenses it incurs (including the cost of litigation and reasonable attorneys'
fees) on account of personal injury or death to persons and damage to tangible
property which occurs on Phase I, to the extent caused by the misconduct or
wrongful or negligent act or omission of the Company, Owner, Property Manager or
their agents (except Subcontractor or any of Subcontractor's Affiliates), their
licensees or persons they employ, provided that the provisions of this Section
5.4 and the indemnity hereunder shall not be applicable when such claims or
liabilities are or would be covered by insurance proceeds payable under
insurance policies required under this Agreement to be carried by Subcontractor
or the contractors it employs, and, further provided that with respect to claims
contemplated by this Section 5.4 which are made by independent contractors
employed by Subcontractor, Subcontractor has complied with Section 5.3 above.
This Section 5.4 shall survive the expiration or earlier termination of this
Agreement.
(b) Property Manager shall have the right to defend, at its
expense and by counsel of its own choosing, against any claim or liability to
which the indemnity agreement set forth in Section 5.4(a) would apply, and the
right of Subcontractor or any persons being defended hereunder to defend or
settle any such claim shall be limited to those cases where Property Manager has
failed or refused to defend. Property Manager or its counsel shall apprise
Subcontractors counsel of the status of all proceedings.
(c) If allowed by law and offered by Owner's insurance carriers,
Property Manager will use its best efforts to cause Owner to require any carrier
of fire or property damage liability insurance covering Phase I to waive any
right of subrogation against Subcontractor for
6
its acts or omissions in the performance of its Services under this Agreement to
the extent of any fire or property damage liability insurance proceeds paid to
Owner.
6. Term of Agreement.
6.1 Term. The term of this Agreement shall be coterminous with the term
of the Management Agreement, provided, however, this Agreement may be terminated
by Property Manager at any time with or without cause upon thirty (30) days
prior written notice to Subcontractor.
6.2 Obligations Upon Termination. Upon the termination of this Agreement
by any means:
(a) Property Manager shall indemnify Subcontractor against
obligations and expenses on all contracts, commitments and purchase orders
placed or made by Subcontractor on behalf of Owner within Subcontractor's
authority hereunder, up to the effective date of termination, provided such
contracts contain thirty (30) day termination rights, or both Property Manager
and Owner or the Company have specifically approved such contracts which do not
contain such termination or cancellation rights, and Property Manager shall
remain obligated to Subcontractor for all Management Fees and other compensation
hereunder earned by Subcontractor through the date of termination and for all
reimbursements due to Subcontractor pursuant to this Agreement; provided,
however, Property Manager may withhold such unpaid Management Fees if this
Agreement is terminated because of a breach hereof by Subcontractor, or the
willful misconduct, fraud, misrepresentation, or breach of trust by
Subcontractor, pending resolution of damages Property Manager has incurred, if
any, because of such breach or act or omission by Subcontractor.
(b) Upon Property Manager's payment to Subcontractor of all
Management Fees earned by Subcontractor through the date of termination, plus
all reimbursements due to Subcontractor pursuant to this Agreement, less any
offset due Property Manager under Section 6.3(a), except as set forth in Section
6.3(c), Subcontractor shall have no further rights, duties, liabilities or
obligations whatsoever under this Agreement and Property Manager shall have only
those rights which may arise hereunder or at law or in equity due to a breach of
this Agreement by Subcontractor.
(c) Subcontractor shall remain obligated:
(1) To render to Property Manager and Owner a final
accounting of income and expenses of Phase I as provided in the Management
Agreement.
(2) To deliver to Property Manager or Owner all income and
all security deposits from Phase I for which Subcontractor is responsible
hereunder. If there is any dispute between Property Manager, Owner and
Subcontractor concerning the payment of unpaid Management Fees, reimbursement of
expenses or other amounts to be paid under this Agreement as of the date of
termination, Subcontractor shall deposit any funds it is responsible for
hereunder with respect to Phase I on the date of termination into an escrow
account with an independent escrow holder which requires the agreement of Owner
and Property Manager and, Subcontractor, or a decision of the arbitrator under
Article 8, to release the funds; thereafter, the issue shall be
7
submitted to arbitration in accordance with Article 8 and the decision of the
arbitrator shall be binding on the parties and on the escrow holder.
(3) To deliver to Owner, the Company or Property Manager all
keys, records, contracts, leases, receipts, unpaid bills and other documents
relative to Phase I and in Subcontractor's possession at the date of termination
and to assign to Owner all of its rights and obligations in purchase orders,
contracts, warranties, and other commitments which Property Manager or owner
requests that it assign.
(4) To continue to indemnify Property Manager, the Company
and Owner for matters specified under Section 5.1 above and for any other
obligations that expressly survive the termination hereof.
(d) All personal property (including but not limited to equipment,
hardware, trade and non-trade fixtures, materials and supplies) acquired
pursuant to this Agreement, whether paid for directly by Property Manager or
Owner or by way of reimbursement to Subcontractor, shall become the property of
Owner and shall remain in Phase I at the termination of this Agreement.
This Section 6.3 shall survive the expiration or earlier termination of
this Agreement.
7. General Provisions.
7.1 Notices. All notices, approvals, demands, reports and other
communications provided for in this Agreement (individually, a "NOTICE") shall
be in writing and shall be given to such party at its address set forth below or
such other address as such party may hereafter specify for the purpose by Notice
to the other party listed below. Each Notice shall be deemed delivered to the
party to whom it is addressed (a) if personally served or delivered, upon
delivery, (b) if given by certified or registered mail, return receipt
requested, deposited with the United States Mail with first-class postage
prepaid, seventy-two (72) hours after such Notice is deposited with the United
States Mail, (c) if given by overnight courier with overnight courier charges
prepaid, twenty-four (24) hours after delivery to said overnight courier, or (d)
if given by any other means, upon delivery when delivered at the following
address:
If to Owner:
Xxxxxxx Partners-611 N. Brand, LLC
c/x Xxxxxxx Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
8
and a copy to:
Bank of America
Legal Department
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx, Esq.
and a copy to:
BankAmerica Realty Services, Inc.
x/x Xxxx xx Xxxxxxx Xxxxxxxxx Xxxx Xxxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Vice President
If to Property Manager:
Xxxxxxx Partners-Glendale, LLC
c/x Xxxxxxx Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
If to Subcontractor:
Xxxxxxx Properties, L.P.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
7.2 Attorneys' Fees. If any action, arbitration or proceeding be
commenced (including an appeal thereof) to enforce any of the provisions of this
Agreement or to enforce a judgment, whether or not such action is prosecuted to
judgment, the unsuccessful party therein shall pay all reasonable costs incurred
by the prevailing party therein, including reasonable attorneys' fees and
reasonable costs, court costs and reimbursements for any other expenses incurred
in connection therewith. The rights and obligations of the parties under this
Section 7.2 shall survive the termination of this Agreement.
7.3 Non-Assignability. This Agreement and the rights and obligations
hereunder, shall not be assignable by either party hereto, voluntarily or by,
operation of law, without the written consent of the other and of the Company or
Owner, to the extent required by the Management Agreement, except for (a)
assignments required by any insurance carrier in any matter relating to
subrogation, or (b) an assignment from Property Manager to another entity
9
which is an Affiliate of Property Manager; provided, however, that Subcontractor
may subcontract with Xxxxxxx Services or another affiliate of Subcontractor to
perform certain services required of Subcontractor hereunder.
7.4 Amendments. All amendments to this Agreement shall be in writing and
executed by both parties.
7.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
7.6 Cooperation. Should any claim, demand, action or other legal
proceeding arising out of matters covered by this Agreement be made or
instituted by any third party against a party to this Agreement, the other party
to this Agreement shall furnish such information and reasonable assistance in
defending such proceeding as may be requested by the party against whom such
proceeding is brought.
7.7 Waiver of Rights. The failure of Property Manager or Subcontractor
to seek redress for violations, or to insist upon the strict performance of any
covenant, agreement, provision or condition of this Agreement, shall not
constitute a waiver of the terms of such covenant, agreement, provision or
condition at any subsequent time, or of the terms of any other covenant,
agreement, provision or condition contained in this Agreement.
7.8 Successors and Assigns. Subject to the limitations in Section 7.3,
this Agreement and each of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns, in cases where assignment is permitted.
7.9 Subordination. This Agreement shall be and remain absolutely and
unconditionally subordinate to any valid recorded mortgage on Phase I whether
already or hereafter recorded. The subordination of this Agreement shall require
the execution of no further documentation, but Subcontractor agrees to execute
any reasonable subordination agreement or consent to any assignment of this
Agreement for security purposes which Property Manager requests Subcontractor to
execute.
7.10 No Recourse. The parties agree that there shall be no recourse
against any member of Property Manager or any partner of Subcontractor for any
payments due, or the enforcement of any obligations under this Agreement; each
party's liability under this Agreement shall be limited to the amount which can
be recovered from such party's assets.
7.11 Severability. If any provision of this Agreement or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.12 No Third Party Beneficiary. Without limiting the rights of Owner and
any secured lender of Owner which receives an assignment of Owner's interest
under the Management Agreement for security purposes, this Agreement is made
solely and specifically between and for the benefit of the parties hereto, and
their respective successors and assigns
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subject to the express provisions hereof relating to successors and assigns, and
no other person whatsoever shall have any rights, interest, or claims hereunder
or be entitled to any benefits under or on account of this Agreement as a third
party beneficiary or otherwise.
7.13 Definitions. For purposes hereof, "PERSON" is defined as any
individual, partnership, corporation or other entity. The terms "AFFILIATE" and
"AFFILIATES" are defined in the same manner as provided in the Operating
Agreement.
7.14 No Lien. This Agreement does not create a lien of any kind upon
Phase I or any other real or personal property.
7.15 Integration. This Agreement and the Exhibits attached hereto and
made a part hereof set forth the entire agreement and understanding of the
parties with respect to the subject matter hereof, supersede and take the, place
of any and all previous agreements entered into between the parties hereto
relating to the subject matter of this Agreement.
7.16 Trademark. Subcontractor shall have no right to use the trademark or
trade name of BARSI or its Affiliates in connection with any product, promotion
or publication without the prior written approval of BARSI.
7.17 Interest. Any amounts owed by either party to the other hereunder
shall accrue interest at the Reference Rate of interest announced from time to
time by Bank of America, NT&SA plus two percent (2%) per annum from the date due
until paid, but not to exceed the highest rate allowed by law.
8. Arbitration.
Any controversy or claim between Property Manager and Subcontractor
arising out of or relating to this Agreement and any claim based on or arising
from an alleged tort relating to the performance of this Agreement shall be
resolved in the same manner an is provided for in the Management Agreement for
the resolution of disputes thereunder. If the matter in dispute between the
parties arises out of, or relates to a dispute between Owner and Property
Manager under the Management Agreement, then the disputes shall be resolved in
one consolidated arbitration, at the request of either party.
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IN WITNESS WHEREOF, Property Manager and Subcontractor have executed this
Agreement as of the day and year first above written.
"PROPERTY MANAGER"
XXXXXXX PARTNERS-GLENDALE, LLC
a California limited liability company
By: XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
Its Member
By: Xxxxxxx Properties, Inc.
a Maryland corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
"SUBCONTRACTOR"
XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
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APPROVED BY THE REQUISITE MEMBERS OF THE MANAGEMENT COMMITTEE OF THE COMPANY
"THE COMPANY"
XXXXXXX PARTNERS - GLENDALE CENTER, LLC
a California limited liability company
By: XXXXXXX PARTNERS - GLENDALE, LLC
a California limited liability company
By: XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
Its Member
By: Xxxxxxx Properties, Inc.
a Maryland corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
By: BANKAMERICA REALTY SERVICES, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
Parcel "A", in the City of Glendale, County of Los Angeles, State of California,
as shown on parcel map Gln. No. 1114A, filed in Book 40 Page 24 of Parcel Maps,
in the office of the County Recorder of said County.
Except therefrom all minerals, oils, gases and other hydrocarbons by whatsoever
name known that may be within or under portions of land, without, however, the
right to drill, dig or mine through the surface thereof, as reserved by the
State of California, in deeds recorded June 2, 1969 as Instrument No. 2441 and
July 11, 1969 as instrument No. 2311.
A-1
EXHIBIT "B"
MANAGEMENT AGREEMENT
