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EXHIBIT 10A
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Real Estate Investment Advisory Agreement
between
EREIM Managers Corp.
and
Equitable Real Estate
Investment Management, Inc.
dated June 10, 1997
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TABLE OF CONTENTS
Page
PREAMBLE ....................................................................1
Article I Engagement; Compensation; and Standard of Performance......2
1.1 Engagement and Acceptance..................................2
1.2 Compensation; Fees for Services............................2
1.3 Standard of Performance....................................4
Article II Duties of the Advisor......................................4
2.1 Performance of EMC's Obligations...........................4
2.2 Investment Advice, Services and Assistance Generally.......4
2.3 Mortgage Loan Servicing....................................4
2.4 Advisory and Investment Management Services................5
2.5 Dispositions...............................................7
2.6 Books, Records, Instruments, Documents and Files...........7
2.7 Reports and Information....................................8
2.8 Cooperation; Meetings......................................8
2.9 Administrative and Other Services..........................9
Article III Authority of the Advisor..................................11
3.1 Authority.................................................11
3.2 Limitations on Authority..................................12
Article IV Covenants of the Advisor..................................12
4.1 Status and Registration of the Advisor....................12
4.2 Other Business............................................12
4.3 No Assignment or Delegation...............................12
4.4 Confidentiality; Proprietary Materials....................13
4.5 No Affiliate Benefits.....................................13
4.6 Information Relating to the Advisor.......................13
4.7 Insurance.................................................14
4.8 Environmental Compliance..................................15
4.9 Property Managers and Other Service Providers.............15
Article V Rights of EMC.............................................16
5.1 Execution of Documents....................................16
5.2 Audit Review..............................................16
5.3 Legal Counsel.............................................17
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5.4 Other Advisors............................................17
5.5 Personnel.................................................17
Article VI Indemnification and Related Matters.......................18
6.1 Indemnification By the Advisor............................18
6.2 Indemnification By EMC....................................19
6.3 Notices...................................................19
6.4 Defense of Claims.........................................19
6.5 Subrogation...............................................20
Article VII Term and Termination......................................20
7.1 Term......................................................20
7.2 Termination Due to Material Breach........................20
7.3 Termination Without Cause.................................21
7.4 Termination By Reason of ELAS Termination.................21
7.5 Additional Remedies.......................................21
7.6 Obligations Upon Termination..............................22
7.7 Further Assurances on Termination.........................22
7.8 License After Termination.................................22
7.9 Deliveries and Retention of Records.......................23
7.10 Obligations that Survive Termination......................24
Article VIII Notices...................................................24
8.1 Notices...................................................24
Article IX Definitions...............................................26
Article X Miscellaneous.............................................28
10.1 Dispute Resolution; Arbitration...........................28
10.2 Agreements of EMC.........................................28
10.3 Entire Agreement..........................................29
10.4 Amendments and Waivers....................................29
10.5 Governing Law.............................................29
10.6 Consent to Jurisdiction, etc..............................29
10.7 Waiver of Punitive and Other Damages and Jury Trial.......30
10.8 Interpretation............................................31
10.9 Cumulative Remedies.......................................31
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10.10 Binding Effect............................................31
10.11 Further Assurances........................................31
10.12 Publicity.................................................31
10.13 Counterparts..............................................32
10.14 Section Headings..........................................32
10.15 Severability..............................................32
10.16 No Third Party Rights.....................................32
10.17 Successors and Assigns....................................32
Schedule 1.2(b) - Principles Applicable to Additional Fees
Exhibit 2.3 - Mortgage Loan Servicing
Exhibit 2.4(h) - Mortgage Reinspection Program
Schedule 2.7(b) - List of Reports
Schedule 5.5.1 - List of Continuing Employees
Schedule 5.5.2 - List of Employee Positions Subject to EMC Approval
Schedule IX - List of Certain Agreements
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Real Estate Investment
Advisory Agreement
Real Estate Investment Advisory Agreement, dated as of June 10,
1997, between EREIM Managers Corp., a Delaware corporation ("EMC"), and
Equitable Real Estate Investment Management, Inc., a Delaware corporation (the
"Advisor").
PREAMBLE
EMC is the Managing General Partner of ML/EQ Real Estate
Portfolio, L.P., a Delaware limited partnership (the "Partnership"), and the
Partnership is the Managing General Partner of EML Associates, a Delaware
general partnership (the "Venture"). Lend Lease Corporation Limited is, on the
date hereof, purchasing the Advisor. Prior to the date hereof, EMC was a wholly
owned subsidiary of the Advisor and the Advisor was a wholly owned indirect
subsidiary of The Equitable Life Assurance Society of the United States
("ELAS"). After the date hereof, EMC will not be a subsidiary of the Advisor
but will continue to be a wholly owned indirect subsidiary of ELAS. As the
managing general partner of the Partnership, EMC is obligated under the
Partnership Agreement to perform certain duties and obligations in respect of
the Partnership and, as the managing general partner of the Venture, the
Partnership is obligated under the Venture Agreement to perform certain duties
and obligations in respect of the Venture. Prior to the date hereof, EMC
performed its obligations as managing general partner of the Partnership and
the Partnership's obligations as managing general partner of the Venture by
utilizing the staff, resources and expertise of the Advisor. The Advisor and
EMC now wish to enter into this Agreement in order to provide for the
continuation of the services provided by the Advisor to EMC to enable EMC to
continue to perform such obligations subsequent to the date hereof. It is the
intention and objective of the parties that EMC is not delegating its duties
under the Partnership Agreement or the Venture Agreement, and that all actions
by the Advisor under this Agreement will be taken on behalf of and at the
direction of EMC.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, EMC and the Advisor hereby agree as
follows:
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Article I
Engagement; Compensation; and Standard of Performance
1.1 Engagement and Acceptance. (a) EMC hereby engages the Advisor to
provide nondiscretionary investment advisory and asset management services (i)
of the kinds required by this Agreement and previously provided by the Advisor
to EMC to enable EMC to perform its obligations as managing general partner of
the Partnership and the Partnership's obligations as managing general partner
of the Venture and (ii) as may otherwise be reasonably requested of the Advisor
by EMC during the term of this Agreement, in each case as described in this
Agreement and upon the terms and conditions set forth in this Agreement. The
Advisor hereby accepts such engagement, acknowledges that EMC shall have
complete and absolute discretion with respect to decisions to be made regarding
EMC, the Partnership, the Venture and the Investments (as such term and certain
other terms used in this Agreement are defined in Article IX), and agrees to
perform the covenants and obligations under this Agreement on its part to be
performed. In accepting such engagement, the Advisor recognizes that EMC has
special circumstances and needs as the managing general partner of the
Partnership, including the need to be kept informed by the Advisor of its
obligations and to receive recommendations from the Advisor with respect
thereto, all on a regular basis to enable EMC to avoid the occurrence of any
default by EMC under the Partnership Agreement or by the Partnership under the
Venture Agreement or by EMC, the Partnership or the Venture under any contract
or other agreement of which the Advisor is aware or under any Regulatory
Requirement. Notwithstanding any other provision of this Agreement, the Advisor
shall not, in connection with new or additional services requested by EMC
hereunder, be required to undertake any new line of business or to engage in
any business activity other than those in which the Advisor has been engaged on
or prior to the date of this Agreement.
(b) The Advisor hereby acknowledges that all members of the Board
of Directors and the President of EMC shall be ELAS officers or employees and
that, although certain other officers of EMC may, as provided in Section
2.4(l), be officers or employees of the Advisor, all decisions to be made and
actions to be taken by EMC under this Agreement shall not in any event be made
or taken by the Advisor or such officers or employees of the Advisor but rather
shall be made or taken by the Board of Directors of EMC or by officers of EMC
who are ELAS officers or employees.
1.2 Compensation; Fees for Services. (a) Subject to Section 1.2(b),
EMC shall pay to the Advisor, as the sole compensation for the services to be
rendered by the Advisor under this Agreement and for all of the Advisor's costs
and expenses incurred in
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the performance of its duties under this Agreement, amounts equal to (i) the
Venture Supervisory Fee payable under Section 5.2.x, the Mortgage Loan
Servicing Fee payable under Section 5.2.xi and the Disposition Fees payable
under Section 5.2.xv of the Partnership Agreement, to the extent such Fees are
paid under the Partnership Agreement (which fees shall be paid before
distributions to EMC), and (ii) any costs, expenses or charges incurred by the
Advisor which, if incurred by EMC, would be reimbursed to EMC pursuant to the
terms of the Partnership Agreement or the Venture Agreement or otherwise in
accordance with current practice. Payment of fees shall be made by EMC
directing the Partnership to make such payment, on behalf of EMC, directly to
the Advisor in accordance with current practice. Reimbursement of costs,
expenses or charges shall also be made in accordance with current practice.
Except as payable under this Section 1.2 , or as chargeable to the Partnership,
the Venture or any Investment under this Section 1.2 in accordance with current
practice, the Advisor shall not be reimbursed for any costs and expenses
relating to its duties under this Agreement or to the general operation of its
business.
(b) The compensation provided in Section 1.2(a) shall cover all
services to be provided by the Advisor under this Agreement, provided that, if
any such service (i) is not contemplated by the Agreements, or by any other
contract or agreement currently in effect and binding on EMC, the Partnership
or the Venture of which the Advisor is aware, and constitutes a unique or
special project (such as, by way of example and not of limitation, the
provision of data and information in support of EMC in connection with a major
litigation (other than a litigation arising with respect to an Investment or
any matter as to which the Advisor is required to provide indemnification under
Section 6.1)), or (ii) is not required by the Agreements or any Regulatory
Requirement and is not currently provided by the Advisor to EMC but may,
pursuant to the terms of this Agreement, be required to be provided by the
Advisor if requested by EMC or at the direction of EMC and results in an
increase in services which is materially more extensive or burdensome than
those currently provided, EMC will, in addition to the fees payable to the
Advisor under Section 1.2(a), compensate the Advisor in respect of the
provision of such service in accordance with the principles set forth in
Schedule 1.2(b). As a condition to the payment of any amount due the Advisor
under this paragraph (b), prior to providing a service which the Advisor
believes is subject to this Section 1.2(b), the Advisor shall so notify EMC in
writing, which notice shall also contain the information required by
Schedule 1.2(b). With respect to any services provided which fall within this
Section 1.2(b), the Advisor shall submit invoices to EMC setting forth the
amounts chargeable in respect of such services, the basis of the calculation
thereof and in such other detail and with such back-up documentation as
reasonably requested by EMC. Payments of such invoices shall be made to the
Advisor within 15 days after the submission thereof.
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1.3 Standard of Performance. The Advisor shall (a) discharge its
duties hereunder with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims and (b) discharge its duties in a manner
consistent with the fiduciary duties owed by EMC to the other partners in the
Partnership and by the Partnership to the other partners in the Venture,
provided that the Advisor shall not be liable for actions taken or omitted to
be taken by it at the direction of EMC.
Article II
Duties of the Advisor
2.1 Performance of EMC's Obligations. The Advisor shall perform such
services, on behalf and at the direction of EMC, as shall enable EMC to fulfill
and perform its duties and obligations as managing general partner of the
Partnership, which obligations shall include without limitation the
Partnership's duties and obligations as managing general partner of the
Venture, in each case as provided in and in accordance with the Agreements and
this Agreement. As part of such obligations, the Advisor shall maintain the
Partnership and, through the Partnership, maintain the Venture, conduct all
dealings with and perform all obligations with respect to the other partners in
the Partnership and the co-venturer in the Venture, keep accounts of EMC, the
Partnership and the Venture, make required filings with Regulatory Authorities,
advise, oversee, keep informed and report and make recommendations to EMC with
respect to the compliance by EMC, the Partnership and the Venture with
applicable Regulatory Requirements, prepare, distribute and file financial
reports and tax returns for the Partnership and the Venture and otherwise take
such actions as may be necessary to satisfy the obligations of EMC, the
Partnership and the Venture, as the case may be, under the Agreements.
2.2 Investment Advice, Services and Assistance Generally. The Advisor
shall advise, assist and provide services and make recommendations to EMC with
respect to the Investments. The Advisor shall provide EMC with the advice,
analyses, recommendations and other services and support set forth in this
Agreement.
2.3 Mortgage Loan Servicing. The Advisor shall, with respect to
Mortgage Loans, perform standard mortgage loan servicing functions in
accordance with current practice or as EMC may from time to time otherwise
reasonably direct. Such functions shall include the preparation of reports, the
making of recommendations, the assistance and the services described in Exhibit
2.3 attached hereto.
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2.4 Advisory and Investment Management Services. The Advisor shall
provide real estate investment advice and advisory services for EMC as set
forth herein. As part of such services, the Advisor shall perform the following
asset management services, in each case in accordance with current practice or
as EMC may from time to time direct and subject to the provisions of Section
1.2 hereof:
(a) report and make recommendations to EMC with respect to
the sale, ownership, management, leasing, operation, maintenance and
improvement of Properties held by the Venture and advise and assist
EMC regarding the uses of cash flow from operations and capital
transactions and the establishment of investment and operational
goals, policies and procedures;
(b) report and make recommendations to EMC with respect to
on-site property management, leasing, operation, maintenance and
improvement of each Property, including without limitation,
recommendations relating to the collection of revenues therefrom, the
payment of operating and capital expenses relating thereto and the
establishment and maintenance of reserves;
(c) supervise and institute appropriate procedures with
respect to the activities of the property manager and leasing agent
for each Property and monitor the operational results of each Property
and formulate operating policies and leasing guidelines and report and
make recommendations to EMC with respect thereto;
(d) implement all transactions and conduct negotiations with
respect to Investments, supervise compliance with contractual
undertakings of EMC with respect to the Partnership and the Venture
and of the Partnership and the Venture with respect to Investments,
manage and act on behalf of EMC with respect to participants in
Mortgage Loans and co-owners with respect to Investments, assist EMC
with respect to third-party financing for Investments, and report and
make recommendations to EMC with respect thereto;
(e) maintain and make recommendations concerning financial,
banking, recordkeeping, accounting, management and information systems
and controls for the Investments;
(f) develop for EMC's approval annual and other operating
plans for each Property, including forecasts, operating programs and
budgets, capital expenditures, insurance data and marketing or leasing
strategies;
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(g) timely report and make recommendations to EMC with
respect to any pending or threatened litigation or Regulatory
Authority investigation or proceeding concerning or relating to the
Investments or any actual or alleged conduct or practices of EMC, the
Partnership, the Venture, the Advisor or any of their agents with
respect thereto and monitor and assist EMC with respect thereto;
(h) physically inspect each Property on a regular basis, in
accordance with past practice, to monitor that it is being maintained
in a good state of repair and in compliance with applicable legal and
insurance requirements, and comply with EMC's mortgage reinspection
program (as set forth in Exhibit 2.4(h) hereto) with respect to each
Mortgage Loan property;
(i) timely report and make recommendations to EMC with
respect to any damage, destruction or condemnation of a Property or
any other event or development which may be covered by insurance and
assist EMC with respect thereto, with respect to the repair or other
cure of any such damage or damage caused thereby and with respect to
timely notification of appropriate insurance carriers, negotiation and
settlement with such carriers and the collection of insurance proceeds
and condemnation awards with respect thereto;
(j) provided the Advisor is permitted to do so under
agreements applicable to such Investments, oversee and monitor the
preparation and delivery by each property manager of, and review and
recommend for approval by EMC, an annual operating and capital budget
for each Property, using its best efforts to cause the same to be
delivered to EMC for approval by not less than 90 days (or such
shorter period as may be required under the Partnership Agreement or
the Venture Agreement) prior to the beginning of each calendar year
(and, unless and until EMC disapproves such budget, the property
manager may operate such Property in accordance with such budget);
(k) timely notify EMC if the Advisor becomes aware of any
material violation of a Regulatory Requirement applicable to any
Investment;
(l) maintain and qualify to do business EMC, the Partnership
and the Venture and provide two or more employees to serve as Vice
President, Secretary and Treasurer, respectively, of EMC (it being
agreed that, in addition to such other officers as the Board of
Directors of EMC may appoint, there shall at all times be a President
and Chief Executive Officer who is an employee of ELAS); and
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(m) prepare presentations and related reports, resolutions
and similar materials relating to Investments, and assist EMC in
responding to any requests, investigations or inquiries by any partner
or investor in the Partnership or partner or joint venturer in the
Venture and any direct or indirect parent of EMC or any Regulatory
Authority.
2.5 Dispositions. The Advisor shall make recommendations for the
disposition of Investments. In connection therewith, the Advisor shall
recommend, for the approval of EMC, real estate brokers to assist in marketing,
selling and otherwise disposing of a particular Investment or group of
Investments and negotiate for such dispositions on such terms and conditions as
EMC shall determine.
2.6 Books, Records, Instruments, Documents and Files. The Advisor
shall, in accordance with current practice or as EMC may from time to time
reasonably direct, keep accurate books, records, data and files (including
without limitation, computerized material) with respect to the Partnership, the
Venture and the Investments in accordance with the requirements of the
Partnership Agreement and the Venture Agreement, in such detail as is
appropriate under the circumstances. In accordance with and subject to
Regulatory Requirements, the Advisor shall have full responsibility for the
maintenance, care and safe-keeping of all Investment Information presently
being maintained by the Advisor or hereafter generated or obtained by the
Advisor in performing its obligations under this Agreement. All Investment
Information shall be kept and maintained by the Advisor at such locations as
required under the Partnership Agreement or the Venture Agreement or, to the
extent no such location is required, at its office address set forth in Section
8.1 or such other office addresses or locations as EMC may approve, which
approval shall not be unreasonably withheld , or, to the extent in accordance
with current practice and permitted by the Agreements and with the consent of
EMC (which consent shall not be unreasonably withheld), at the regional offices
of the Advisor, as the same may change from time to time, and the Advisor will
give EMC prior notice of any such change. All Investment Information shall be
and remain the sole and exclusive property of, and shall belong to and remain
under the ultimate control of, EMC, the Partnership or the Venture, as the case
may be. EMC shall at all times have complete and unrestricted access to all
Investment Information. The Advisor shall not in any way interfere with or
deprive EMC, the Partnership or the Venture, as the case may be, of its
ownership, control or right of access to such written and computerized
Investment Information which may be enforced by EMC, the Partnership or the
Venture, as the case may be, by an action at law or in equity, whether for
specific performance or injunction or otherwise, even if EMC is in default
hereunder or after this Agreement has terminated. All Investment Information
shall be open to inspection and audit, at all reasonable times, by EMC, its
designees, such parties as may be entitled to inspect or review such Investment
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Information under the Partnership Agreement or the Venture Agreement, and
Regulatory Authorities, and the Advisor shall, if requested, make and deliver
copies and extracts therefrom to any such person, without charge (unless
copying costs become unreasonable in which case EMC, the Partnership or the
Venture shall reimburse the Advisor therefor). All Investment Information may
be audited from time to time by independent accountants selected by EMC and
paid for by EMC, the Partnership or the Venture.
2.7 Reports and Information. Subject to Section 1.2, the Advisor shall
prepare and provide to EMC and to such other parties to whom EMC is required to
deliver such reports and information pursuant to the Agreements or any
Regulatory Authority, the following reports and information:
(a) within the time periods required under the Agreements or
otherwise in accordance with Regulatory Requirements, all such
reports, securities filings, tax returns, financial statements and
other filings, information or communications as are required to be
prepared by EMC as managing general partner of the Partnership or by
the Partnership as managing general partner of the Venture pursuant to
the Agreements (including without limitation, Section 9.4 of each of
the Venture Agreement and the Partnership Agreement) or any Regulatory
Requirement;
(b) at such times as are set forth in Schedule 2.7(b), such
additional reports as are currently provided by the Advisor to EMC as
set forth on Schedule 2.7(b); and
(c) such additional data, reports, analyses and information
as EMC shall otherwise reasonably request, whether in connection with
the Partnership, the Venture or the Investments.
2.8 Cooperation; Meetings. EMC and the Advisor shall cooperate and
carry on a regular dialogue with each other concerning the affairs of EMC, the
Partnership and the Venture. The Advisor, represented by such officers and
other employees of the Advisor responsible for the performance of services
hereunder as EMC may reasonably require, shall meet with representatives of
EMC, and at EMC's request, of the Partnership or the Venture, regularly at such
times as are reasonably established by EMC, at the offices of ELAS or the
Advisor or such other locations as may be reasonably requested by EMC, to
discuss and review the performance of the Investments, the performance of the
Advisor under this Agreement and any other matters relating or pertaining to
this Agreement.
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2.9 Administrative and Other Services. The Advisor shall provide the
following administrative and other services:
(a) Cash Management Services. The Advisor shall (i) maintain
all bank accounts for EMC in the name of EMC, for the Partnership in
the name of the Partnership and for the Venture in the name of the
Venture, and deposit into such bank accounts the funds belonging to
EMC, the Partnership and the Venture, respectively, (ii) deposit all
payments related to Mortgage Loans collected by the Advisor in a
commingled lockbox account in the name of the Advisor or, if EMC so
requests, in a Designated Account, and if deposited in a commingled
lockbox, transfer the same to a Designated Account within one business
day and pay all expenses with respect to Mortgage Loans from such
Designated Account, (iii) cause all property managers of Equity
properties to deposit all revenues collected therefrom into and pay
all expenses relating thereto out of Designated Accounts in accordance
with annual operating and capital budgets with respect thereto
approved by EMC or otherwise as agreed to by EMC and the Advisor and
(iv) adopt appropriate check and electronic funds transfer fraud
prevention procedures. The Advisor will pay the cost of maintaining
any commingled lockbox account (and will be entitled to retain all
interest earned in respect thereof) referred to above, and the cost of
any Designated Account (interest on which shall belong to the Venture)
will be charged to the Investment for which such Account has been
established.
(b) Accounting Services. The Advisor shall, in accordance
with current practice or as otherwise required by EMC, (i) maintain
records for each Investment on tax, GAAP, and other bases as are
currently being maintained or as may be requested by EMC, (ii) make
accounting entries and prepare accounting reports (including without
limitation, schedules for periodic and annual filings with Regulatory
Authorities) required by EMC to meet its, the Partnership's and the
Venture's reporting obligations, (iii) consult with EMC with respect
to proposed or new accounting/regulatory rules applicable to EMC, the
Partnership or the Venture, (iv) consult with EMC regarding
implications of proposed and actual transactions, and (v) prepare all
financial statements and perform all accounting services required by
EMC, the Partnership and the Venture in accordance with current
practice.
(c) Tax Related Services. The Advisor shall, in accordance
with current practice or as otherwise required by EMC, and in
coordination with outside tax advisors and counsel, (i) assemble and
maintain information and data with respect to the Investments, prepare
quarterly and annual financial statement
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tax liabilities and forecasts and federal, state, local and foreign
tax returns, and represent EMC, the Partnership and the Venture as to
any audits, examinations or administrative or legal proceedings
related thereto or any contractual tax indemnity rights or
obligations, (ii) arrange for the provision of tax planning for the
Partnership, the Venture and the Investments, including without
limitation, preparation of projections of gains, losses and tax
obligations, depreciation schedules and related tax treatment of
particular items, (iii) prepare, file and send to appropriate persons
(including Partnership and Venture tax accountants and counsel)
applicable tax information reporting forms with respect to the
Investments and transactions involving the Investments (including
without limitation, information reporting forms, whether on Form 1099
or otherwise, with respect to sales, foreclosures, interest received,
interest paid, partnership reports and other transactions), and (iv)
prepare or cause to be prepared and deliver to EMC any tax returns
required to be filed by the Partnership or the Venture and file such
returns once executed by EMC in accordance with Regulatory
Requirements.
(d) Public Relations Services. The Advisor shall, in each
case to the extent in accordance with current practice, (i) submit to
EMC, for approval, public relations plans and strategies pertaining to
the Investments, (ii) pursuant to guidelines, submit to EMC for prior
review and approval advertising, marketing and other public
communications materials with respect to the Investments, (iii)
promptly notify EMC of any issues, events and activities with respect
to Investments, the Partnership or the Venture which may generate
adverse media interest, and (iv) not communicate with or respond to
any inquiry of the media with respect to the foregoing, other than
pursuant to guidelines, without the prior approval of EMC on a case by
case basis or pursuant to a strategy previously approved by EMC in
writing. The Advisor may include EMC, the Partnership or the Venture
in its list of clients or make reference to EMC, the Partnership or
the Venture as a client in any proposal, advertising or other
communication, but may not otherwise mention EMC, the Partnership or
the Venture or any of their affiliates in any of the foregoing or
otherwise use or display the name or logo of EMC or any EMC affiliate
without EMC's prior written consent. None of the foregoing shall limit
the right of the Advisor to continue to provide investor relations
services in accordance with current practice.
(e) Insurance Services. The Advisor shall, in accordance with
current practice or as otherwise required by EMC, (i) place and
maintain policies of insurance on the properties in compliance with
the requirements of the Partnership Agreement and the Venture
Agreement, (ii) provide EMC and EMC's, the
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Partnership's and the Venture's insurers, if so requested, with timely
notice of any loss or claim with respect to any property, (iii) deal
with EMC's, the Partnership's and the Venture's insurers in the
assertion and collection of any insurance claims and in the defense of
any actions brought against EMC, the Partnership or the Venture in
connection therewith, and (iv) establish and monitor EMC's, the
Partnership's and the Venture's compliance with insurance and risk
management requirements.
(f) Other Services. The Advisor shall continue to provide the
following services for EMC, the Partnership and the Venture to the
extent currently provided or as otherwise required from time to time
by EMC: engineering, appraisal, valuation, investor relations, data
processing and computer services. Subject to Section 1.2(b), the
Advisor shall also provide such other services as EMC may reasonably
request from time to time in relation to EMC, the Partnership or the
Venture consistent with the purposes of this Agreement or related to
the unique requirements of EMC and its affiliates in respect of their
contractual relationships with the Partnership or the Venture.
Article III
Authority of the Advisor
3.1 Authority. The Advisor on the one hand and EMC, the Partnership
and the Venture on the other are not partners or joint venturers with each
other under or with respect to this Agreement or the investments and properties
covered by this Agreement, and nothing contained in this Agreement nor any
transaction or activity conducted pursuant to this Agreement shall be so
construed or interpreted or impose any liability as such on the Advisor or EMC,
the Partnership or the Venture. The Advisor shall perform its duties under this
Agreement as an independent contractor and not as an agent of EMC, the
Partnership or the Venture. Except as contemplated by Section 2.4(l), no
officer, employee or agent of the Advisor shall, under any circumstances or for
any purpose, become or be an officer, employee or agent of EMC, the Partnership
or the Venture by reason of this Agreement, and the Advisor's officers,
employees and agents shall, when acting on behalf of EMC, represent themselves
as officers, employees or agents, as the case may be, of the Advisor and not of
EMC, the Partnership or the Venture. The Advisor and EMC acknowledge and agree
that the Advisor is not a partner in the Partnership or the Venture and is not
an agent or independent contractor of the Partnership or the Venture. The
Advisor also acknowledges and agrees that it has no contractual relationship
with, and will not assert any claim against, either the Partnership or the
Venture, and will look solely to EMC for the performance of EMC's obligations
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under this Agreement, including without limitation, the obligation, which EMC
hereby acknowledges and agrees to, of EMC to cause the Partnership to pay, in
accordance with the Partnership Agreement, the fees contemplated by Section
1.2(a) and the Partnership and the Venture to effect appropriate reimbursement
of costs, fees or charges as contemplated by Section 1.2(a).
3.2 Limitations on Authority. The Advisor shall be governed by the
investment policies, practices and procedures reasonably established by EMC
from time to time for the Partnership and the Venture, as communicated to the
Advisor by EMC. In providing the services contemplated by this Agreement, the
Advisor will comply in all material respects with applicable provisions of
federal, state and other laws.
Article IV
Covenants of the Advisor
4.1 Status and Registration of the Advisor. The Advisor shall at all
times (a) be validly existing and in good standing under the laws of its state
of incorporation, (b) be duly registered with the United States Securities and
Exchange Commission as an investment adviser under the Investment Advisers Act
of 1940, as amended, to the extent required to perform its obligations under
this Agreement, (c) be duly qualified to do business and duly registered or
licensed as an investment adviser, a real estate broker and a mortgage broker
in each state or jurisdiction necessary to perform its obligations under this
Agreement, and (d) have completed, obtained or performed all registrations,
filings, approvals, licenses, consents and examinations required by any
Regulatory Authority which are required in connection with the performance of
its obligations under this Agreement.
4.2 Other Business. The Advisor may engage in any other business or
act as advisor to or investment manager for any other person, even though such
other person has or may have investment policies similar to those of the
Partnership or the Venture.
4.3 No Assignment or Delegation. (a) Neither this Agreement nor any of
the Advisor's right, title or interest herein or hereunder may be directly or
indirectly (in cluding without limitation, by any "assignment" within the
meaning of the Investment Advisers Act of 1940, as amended, whether direct or
indirect, and whether by operation of law or otherwise) assigned, transferred,
conveyed or otherwise disposed of to any person, including without limitation,
any subsidiary or other affiliate of the Advisor, without the prior written
consent of EMC, and any attempt to so assign, transfer, convey
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or otherwise dispose of any thereof without such prior written consent shall be
null and void.
(b) No duty or obligation of the Advisor hereunder may be contracted
for or otherwise delegated by the Advisor to any person, including without
limitation, any subsidiary or other affiliate of the Advisor, without the prior
written consent of EMC, and any attempt to so contract or otherwise delegate
any thereof without such prior written consent shall be null and void, provided
that the Advisor may, with the consent of EMC, which shall not be unreasonably
withheld, delegate any service to be provided by the Advisor under this
Agreement, other than investment advisory services, asset management services,
disposition services, and tax, accounting and recordkeeping services. If EMC
consents to the contracting or other delegation to any person of any duty or
the performance of any function required to be performed hereunder by the
Advisor, the Advisor shall pay all costs and expenses incurred in connection
therewith. No consent to any contracting or other delegation shall release the
Advisor from its obligations hereunder to perform the duty or function so
delegated, the Advisor shall continue to be liable to EMC with respect to such
delegated duty or function and with respect to the performance thereof by such
other person, notwithstanding such con tracting or other delegation, and any
person to whom any duty or function hereunder is so delegated shall be deemed
an agent of the Advisor for purposes of this Agreement.
4.4 Confidentiality; Proprietary Materials. Except as may be required
by applicable law or as may be necessary to perform its obligations hereunder,
the Advisor and its affiliates shall maintain in strict confidence and shall
not disclose, and shall neither use nor permit to be used, for any purpose, any
Investment Information or other non-public information with respect to or
concerning EMC, the Partnership or the Venture.
4.5 No Affiliate Benefits. Without the prior written consent of EMC,
none of the Advisor, its affiliates or their respective officers, directors or
employees shall (a) be retained by the Advisor (other than in their capacities
as officers, directors or employees of the Advisor) to provide any services to
EMC, the Partnership or the Venture or (b) receive any benefit from EMC, the
Partnership, the Venture or any Investment other than as contemplated by this
Agreement. Notwithstanding the foregoing, the continuation of any services with
respect to a specific Investment being provided to the Partnership or the
Venture by any affiliate of the Advisor or Lend Lease Corporation Limited or
any of their respective officers, directors or employees as of the date of this
Agreement shall not constitute a violation of the preceding sentence.
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4.6 Information Relating to the Advisor. The Advisor will notify EMC
promptly of any changes in the ownership (whether direct or indirect, other
than in respect of Lend Lease Corporation Limited so long as its shares are
publicly traded), control (whether direct or indirect) or corporate structure
of the Advisor. The Advisor shall promptly notify EMC in writing of any
material change in the Advisor's or any of its affiliates' business or
financial or other condition or any investigation, action, suit or proceeding
commenced or threatened against the Advisor or any of its affiliates, in each
case which may adversely affect the Advisor's ability to perform its duties and
obligations hereunder or may otherwise adversely affect EMC, the Partnership or
the Venture. No later than 90 days following the last day of each fiscal year
of the Advisor, the Advisor will prepare and deliver to EMC the Advisor's
consolidated balance sheet and related consolidated statement of income,
shareholder's equity and cash flows at and for each year end, including
supporting footnotes, all in accordance with generally accepted accounting
standards and related reports of independent accountants. All such financial
and other information shall be held in confidence by EMC.
4.7 Insurance. The Advisor shall maintain the following insurance
coverages, with such deductibles as are reasonable and customary practice in
the industry or as EMC may otherwise approve:
(a) Workers Compensation in accordance with statutory
requirements and Employers Liability in an amount not less than
$1,000,000;
(b) commercial general liability insurance and umbrella
liability insurance, on an occurrence basis, in an amount not less
than $25,000,000 Combined Single Limit and annual aggregate;
(c) a comprehensive crime policy, or fidelity bond, covering
all officers, directors and employees of the Advisor with
responsibility for any monies belonging to the Venture in an amount
not less than $10,000,000 per occurrence and annual aggregate;
(d) errors and omissions insurance, covering all services
provided by the Advisor to EMC, in an amount not less than $5,000,000
per claim and annual aggregate;
(e) comprehensive automobile liability insurance covering the
Ad visor's owned, leased and hired vehicles in an amount not less than
$5,000,000 Combined Single Limit; and
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(f) such other insurance as may be reasonably required by EMC
at any time or from time to time and which is in accordance with
reasonable and customary practice in the industry.
EMC and the Advisor will from time to time, at the request of EMC, review and,
as appropriate, increase the amounts set forth in Sections 4.7(a) through (e)
to reflect reasonable and customary practice in the industry. All insurance
required hereunder shall be written with insurance companies authorized to do
business in the State of New York, and having a Best's rating of not less than
A VIII, shall be in a form and with insurers reasonably satisfactory to EMC,
and shall include a provision that coverage provided by such policy shall not
be cancelled or materially changed without giving EMC at least thirty (30)
days' prior written notice. EMC, the Partnership, the Venture and their
respective subsidiaries, officers, directors and employees shall be named as
additional insureds with respect to the coverages required in Sections 4.7(b)
and (e), and the Venture shall be named as a joint loss payee as its interests
may appear with respect to the coverage required in Section 4.7(c). A
certificate or certificates of insurance evidencing the coverages required
hereunder shall be delivered to EMC at the time this Agreement is executed, and
at least ten (10) days prior to each renewal of such insurance.
4.8 Environmental Compliance. The Advisor shall promptly notify EMC
whenever the Advisor acquires knowledge that there exists, with respect to any
property which is the subject of an Investment, any violation or alleged
violation of any Regulatory Requirement relating to any environmental condition
on, under or adjacent to such property or that any person has used, generated,
manufactured, stored or disposed of on, under or about such property or
transported to or from such property any hazardous materials or substances in
violation of any applicable Regulatory Requirement. In the event consideration
is given to the acquisition of any property by way of foreclosure, the Advisor
shall implement appropriate procedures in order to evaluate any potential
exposure to EMC, the Partnership or the Venture under any Regulatory
Requirement with respect to hazardous materials or substances as a result of
the acquisition or ownership of any interest in such property. In addition,
with respect to any existing Investment, the Advisor shall, as reasonably
directed by EMC, arrange for and supervise environmental assessments (including
Phase I and Phase II assessments), studies, testing, remediation, monitoring
and reporting with respect to environmental conditions, provided the same may
be properly charged to the Partnership or the Venture, and the Advisor shall
review and analyze the same and shall submit to EMC the Advisor's review,
analysis and recommendations with respect thereto.
4.9 Property Managers and Other Service Providers. Subject to Section
4.3(b), the Advisor may, from time to time, recommend, for the approval of EMC,
on behalf of
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the Venture, property managers, real estate and leasing brokers, engineering
and environmental consultants, appraisers and other independent service
providers to perform services not normally or ordinarily provided heretofore by
the Advisor to EMC as part of the Advisor's services. Any such property
manager, broker, consultant, appraiser or other service provider shall be
retained and the cost thereof shall be charged to the Venture. In recommending
any such property manager, broker, consultant, appraiser or other service
provider, the Advisor shall recommend only such service providers (which may
include affiliates of the Advisor) that are capable of providing the optimum
level of service consistent with investment strategy and competitive pricing.
If requested by EMC, the Advisor shall furnish EMC with the information on
which the Advisor is relying to establish the capabilities and competitiveness
of the pricing for a provider it has recommended. The Advisor shall not
recommend an affiliate of the Advisor (other than Hyperion Capital Advisors
L.L.C., Compass Management and Leasing, Inc., Compass Retail, Inc. or The
Yarmouth Group) to act as such property manager, broker or other service
provider unless the Advisor shall disclose such affiliation to EMC in writing.
Subject to its obligations under Section 1.3 in recommending and monitoring any
such third party service provider, the Advisor shall not be responsible for or
liable in respect of the performance of its services by such third party
service provider.
Article V
Rights of EMC
5.1 Execution of Documents. Only EMC or a duly authorized designee of
EMC may execute documents with respect to EMC, the Partnership, the Venture or
any Investment or otherwise effect any transaction on behalf of EMC, the
Partnership or the Venture. The Advisor shall not execute any documents or
effect any transactions on behalf of EMC, the Partnership or the Venture
without the express prior written authorization of EMC. The Advisor shall and
shall cause its officers to, if, as and when requested by EMC, execute and
deliver documents on behalf of EMC for itself or for EMC on behalf of the
Partnership or the Venture with respect to the Investments pursuant to a power
of attorney to be provided by EMC or in the capacities contemplated by Section
2.4(l).
5.2 Audit Review. EMC shall have the absolute right (even if EMC is in
default hereunder or after this Agreement has expired or been terminated), at
any time and from time to time upon reasonable notice, to undertake or cause to
be undertaken an audit review of all Investments, the Advisor's performance of
its services under this Agreement, the fees payable to the Advisor hereunder
and all reimbursable costs and expenses hereunder, if any, and the Advisor's
compliance herewith. Such audit review
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may be undertaken directly by EMC, either on its own behalf or on behalf of the
Partnership or the Venture, or by third parties engaged by EMC, for itself or
on behalf of the Partnership or the Venture, and the costs of such audit shall
be borne by EMC or by the Partnership or the Venture, as appropriate. The
Advisor shall, as provided in Section 2.6, cooperate fully with EMC, the
Partnership and the Venture and each such third party in connection with any
such audit review. The rights of EMC, the Partnership and the Venture under
this Section 5.2 may be enforced by an action at law or in equity, whether for
specific performance or injunction or otherwise.
5.3 Legal Counsel. EMC shall have the exclusive authority to engage,
at the cost and expense of the Partnership or the Venture, as appropriate,
legal counsel to act on behalf of EMC, the Partnership or the Venture in
connection with Investments, including without limitation, dispositions,
investment management, property management and leasing, mortgage loan servicing
and any other matters contemplated by or arising under this Agreement or the
Agreements, provided that, with respect to day-to-day and routine legal issues
arising in connection with the management and operation of specific
Investments, the Advisor may, at the cost and expense of EMC or of the
Partnership or the Venture, as appropriate, engage local counsel selected from
a list from time to time furnished or approved in writing by EMC.
5.4 Other Advisors. EMC shall not appoint or engage other advisors to
provide advisory or investment management services in respect of Investments
which are the same as or similar to the services to be performed by the Advisor
under this Agreement, provided that, without affecting EMC's obligation to pay
the Advisor fees and costs and expenses to the extent required by Section 1.2,
EMC may so engage other advisors (a) to provide services in respect of
Investments relating to matters falling within the scope of this Agreement
which the Advisor is not able to provide, in which case the Advisor shall be
responsible for recommending to EMC, in accordance with Section 4.9,
appropriate service providers for such purpose, and (b) to provide second
opinions in respect of advice or recommendations of the Advisor hereunder or to
provide specialized assistance on a non-recurring basis to supplement the
services of the Advisor when so requested by EMC.
5.5 Personnel. The Advisor shall at all times assign officers and
employees with appropriate background and expertise to fulfill the Advisor's
duties under this Agreement, provided that the Advisor's portfolio manager
responsible for the Investments and all personnel of the Advisor performing any
of the Advisor's duties under this Agreement shall report to and be under the
supervision of the Advisor's portfolio manager in charge of Investments in
ELAS's general account. All persons at or above the level of Vice President (or
equivalent level in the future) assigned at any time and from time to time by
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the Advisor to perform all or any part of the Advisor's duties under this
Agreement shall, unless hereafter expressly approved by EMC in writing, be
direct employees of the Advisor and not of any subsidiary or other affiliate
thereof, whether or not such persons are presently employed by any such
subsidiary or other affiliate. Schedule 5.5.1 identifies certain persons who
currently perform those duties of the Advisor indicated on Schedule 5.5.1, and
the Advisor agrees that, unless otherwise directed by EMC or otherwise approved
in advance by EMC in each case, such persons shall continue to be assigned to
work regularly in the performance of such duties and will not be reassigned
from such duties for the period ending on the later of June 30, 1998 and six
months from the date of this Agreement, provided that they remain employed by
or otherwise controlled by or responsible to the Advisor. Schedule 5.5.2
identifies certain employee positions relevant to the performance of the
Advisor's duties hereunder, and the Advisor agrees that such positions shall
only be held by persons who, after consultation between the Advisor and EMC,
have been and continue to be approved by EMC. Subject to the foregoing, the
Advisor may assign and reassign any person performing all or any part of the
Advisor's duties under this Agreement. Any dispute concerning the nature or the
adequacy of the performance of any employee assigned by the Advisor to perform
any of its duties hereunder shall be resolved in accordance with the procedures
provided for in Section 10.1. In addition, if special circumstances arise
relating to incompatibilities between Advisor personnel and EMC personnel or
other persons with whom Advisor personnel must interact in the performance of
their duties hereunder in reference to a specific situation or transaction, any
disputes concerning changes or reassignments of personnel in response to such
situation shall be resolved by executives of the Advisor at a higher level of
management than the persons with direct responsibility for administration of
this Agreement and by executives of ELAS.
Article VI
Indemnification and Related Matters
6.1 Indemnification By the Advisor. The Advisor shall indemnify,
defend and hold harmless EMC and its directors, officers, agents and employees
(each an "EMC Indemnitee" and collectively, the "EMC Indemnitees") from and
against any and all losses, costs, liabilities, damages or deficiencies,
including interest, penalties and reasonable attorneys' fees and disbursements
(collectively, "Losses") incurred as a result of, pursuant to or in connection
with any action, suit, proceeding or claim of any nature whatsoever (a "Claim")
by any third party arising out of, based upon or resulting from (a) a breach of
any representation, warranty, covenant or agreement of the Advisor contained in
this Agreement, or (b) any act, omission or failure to act by the Advisor or
any of its directors, officers, agents or employees constituting a breach of
the standard of
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conduct set forth in Section 1.3 or bad faith, willful misconduct, gross
negligence or reckless disregard of its duties in connection with the
performance by the Advisor or any of its directors, officers, agents or
employees of any of the Advisor's obligations under this Agreement.
6.2 Indemnification By EMC. EMC and its indirect parent, ELAS, shall
indemnify, defend and hold harmless the Advisor and its directors, officers,
agents and employees, whether in their capacities as directors, officers,
agents or employees of the Advisor or in their capacities as officers of EMC as
contemplated by Section 2.4(l) (each an "Advisor Indemnitee" and collectively,
the "Advisor Indemnitees") from and against any and all Losses incurred as a
result of, pursuant to or in connection with any Claim by any third party
arising out of, based upon or resulting from (i) any Investment or proposed
Investment where the Advisor is acting on behalf of EMC under this Agreement,
(ii) the performance by the Advisor or any of its directors, officers, agents
or employees of the Advisor's obligations under this Agreement or (iii) any
matter relating to the Partnership or the Venture or the management, operation
or business thereof, but only to the extent such Claim does not arise out of,
is not based upon or does not result from (a) a breach of any representation,
warranty, covenant or agreement of the Advisor contained in this Agreement or
(b) any act, omission or failure to act by the Advisor or any of its directors,
officers, agents or employees, whether in their capacities as directors,
officers, agents or employees of the Advisor or in their capacities as officers
of EMC as contemplated by Section 2.4(l) constituting a breach of the standard
of conduct set forth in Section 1.3 or bad faith, willful misconduct, gross
negligence or reckless disregard of the Advisor's obligations under this
Agreement.
6.3 Notices. If any Advisor Indemnitee or EMC Indemnitee shall obtain
knowledge of any Claim indemnified against under this Article VI, such
Indemnitee shall give prompt written notice thereof to the Advisor and EMC,
provided that the failure of such Indemnitee to so notify the Advisor and EMC
shall not affect the indemnification obligations to such Indemnitee under this
Article VI except to the extent of any increase in the amount of such Claim
resulting from such failure or to the extent the contest of such Claim is
impaired as a result of such failure.
6.4 Defense of Claims. The Advisor shall control the defense of any
Claim as to which the Advisor is required to provide indemnification under
Section 6.1 and EMC shall control the defense of any Claim as to which EMC is
required to provide in demnification under Section 6.2, in either case with
counsel selected by the Advisor or EMC, as the case may be, which counsel shall
be reasonably acceptable to the other party. Neither the Advisor nor EMC may
settle any claim without the consent of the other party, which consent shall
not be unreasonably withheld. EMC or the Advisor, as
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the case may be, shall be entitled, at its sole cost and expense and acting
through counsel reasonably acceptable to the other party, to participate in the
defense and settlement of any claim for which the other party is required to
provide indemnification. If the party entitled to control the defense of any
Claim does not assume the defense thereof, the other party shall have the right
to select its own counsel and control the defense thereof at the expense of the
party failing to assume such defense.
6.5 Subrogation. Upon payment of any Claim pursuant to this Article
VI, to or on behalf of an EMC Indemnitee or an Advisor Indemnitee, the party
paying such Claim, whether the Advisor or EMC, as the case may be, shall be
subrogated to any and all claims that such Indemnitee may have in respect of
the matters against which such indemnity was given. Such Indemnitee shall
cooperate with the Advisor or EMC, as the case may be, and shall execute such
further instruments to permit the Advisor or EMC, as the case may be, to pursue
such claims.
Article VII
Term and Termination
7.1 Term. This Agreement shall have an initial term from the date
hereof until all the Properties are sold, all Mortgage Loans are paid and
discharged and the affairs of the Partnership and the Venture are fully wound
up, unless sooner terminated pursuant to Section 7.2, 7.3 or 7.4.
7.2 Termination Due to Material Breach. EMC may terminate this
Agreement at any time on not less than thirty days prior written notice in the
event of a Material Breach of this Agreement by the Advisor. A "Material
Breach" is a breach (or a series of breaches constituting a pattern of behavior
or practice) of the representations, covenants or obligations of the Advisor
hereunder that reflects willful misconduct or willful failure to comply with
such representations or to perform such covenants or obligations, or gross
negligence in the compliance with such representations or the performance of
such covenants or obligations, that is, either individually or in the
aggregate, material in relation to the activities and responsibilities of the
Advisor under this Agreement as a whole, provided that no breach or series of
breaches shall be considered a Material Breach if such breach or breaches and
all material consequences thereof have been cured as provided below. Prior to
providing notice terminating this Agreement on the basis of any Material
Breach, EMC shall provide written notice to the Advisor describing the nature
of the Advisor's default with specificity, and the Advisor shall have a period
of 30 days following receipt of any such notice to cure such default. If during
such 30-day period, the Advisor takes reasonable actions to commence a cure of
such default and if
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the nature of such default is such that it cannot, through the exercise of
reasonable diligence, be cured during such 30-day period, such 30-day period
shall be extended for up to 60 additional days so long as the Advisor shall
continue to take reasonable actions to cure such default during such 60-day
period. A Material Breach on the part of the Advisor and the consequences
thereof shall be deemed to be cured for the purpose of this Section 7.2:
(a) if the Material Breach and such consequences can be
completely cured by the payment of money, if all such money is paid in
cash within the 30-day period immediately following receipt of such
notice to cure such default; and
(b) if the Material Breach and such consequences cannot be
completely cured by the payment of money and the actions required for
cure are such that they could be taken within the time periods for
cure set forth above in this Section 7.2, if such actions are taken in
all material respects within such time periods.
Notwithstanding anything to the contrary contained in this Section, the
occurrence of any event constituting a default under Section 4.3(a) of this
Agreement shall be a Material Breach hereunder, and no cure period shall be
available with respect thereto.
7.3 Termination Without Cause. EMC may terminate this Agreement at any
time on not less than ten days' prior written notice to the Advisor, for any
reason or without cause.
7.4 Termination By Reason of ELAS Termination. Contemporaneously
herewith ELAS and the Advisor have entered into a Real Estate Investment
Advisory Agreement (general account) with respect to ELAS's general account
(the "ELAS Agreement"). If the ELAS Agreement shall at any time terminate or be
terminated for any reason whatsoever, EMC may, contemporaneously therewith or
at any time thereafter, terminate this Agreement on not less than thirty days
prior written notice.
7.5 Additional Remedies. The right to terminate this Agreement as
provided in this Article VII is not exclusive of any rights or remedies that
the Advisor or EMC may otherwise have at law or in equity for breaches of this
Agreement, whether for in demnification or otherwise. In addition, EMC and the
Advisor agree that fines, penalties, costs, charges and damages for breaches of
any provision of this Agreement may be assessed by any mediator or arbitrator
in connection with proceedings conducted pursuant to Section 10.1.
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7.6 Obligations Upon Termination. Except as provided in Section 7.7,
from and after the effective date of termination of this Agreement for any
reason whatsoever, the Advisor shall not be entitled to compensation for
further services hereunder but shall be paid all compensation accrued and
unpaid to the date of termination, if any. Any compensation so accrued at the
time of termination, but payable only upon the occur rence of one or more
conditions subsequent, shall be paid only after satisfaction of all such
conditions.
7.7 Further Assurances on Termination. Upon the termination of this
Agreement for any reason whatsoever, the Advisor shall cooperate fully with
EMC, the Partnership and the Venture, including without limitation, providing
to EMC, the Partnership and the Venture access to and opportunity to consult
with the Advisor's officers and employees, in order to facilitate a smooth
transition of the responsibilities and records so as to avoid a disruption of
services to EMC, the Partnership and the Venture. In the case of a termination
by notice, any such transition shall begin immediately upon the giving of such
termination notice and the parties shall use their best efforts to complete
such transition by the termination date. If such transition is not completed by
the termination date or if EMC requests that the Advisor continue to provide
services or undertake duties and responsibilities under this Agreement after
such termination date, the Advisor shall do so for a period of up to 12 months,
unless otherwise mutually agreed between the Advisor and EMC, and this
Agreement shall be deemed to continue in effect with respect to the services so
provided or duties or responsibilities so undertaken and the Advisor shall be
entitled to receive such compensation as shall reasonably reflect the nature,
scope and extent of such services, duties or responsibilities. If the Advisor
and EMC are unable to reach agreement on such compensation, they shall submit
the dispute for resolution pursuant to Section 10.1.
7.8 License After Termination. (a) If notice of termination is given
under this Agreement, EMC shall have the right to receive from the Advisor, in
accordance with Section 7.8(b), a perpetual, worldwide, non-exclusive license
to reproduce, distribute, make derivative works from and otherwise use all, or,
at EMC's sole discretion, part of the Advisor Software in connection with the
provision of investment advisory, asset management and other services to EMC of
the types provided under this Agreement. Such license shall include the right
to sublicense the foregoing to any third party in connection with such party's
provision of services to EMC. In connection with the foregoing, the Advisor
shall have no obligation, except as provided in Section 7.7, to maintain,
correct or otherwise support any of the Advisor Software so licensed to EMC.
"Advisor Software" shall mean the source code and object code versions of the
ap plication, operating, reporting and other software used by the Advisor in
the performance of accounting, valuation, reporting, treasury, data processing
and computing and other
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services for EMC and its affiliates under this Agreement. If EMC wishes to
exercise such right, it shall give notice thereof promptly after notice of
termination is given under this Agreement and, upon receipt of such notice, the
Advisor shall promptly deliver to EMC copies of the Advisor Software (other
than the Third-Party Software) in a form and medium reasonably acceptable to
EMC. Any such license would be subject to obtaining required approvals, if any,
from third parties, which the Advisor will use its reasonable efforts (which
shall not include incurring additional cost on the part of the Advisor) to
obtain. With respect to any Advisor Software hereafter purchased or licensed by
the Advisor, the Advisor will use its reasonable efforts to negotiate terms
which, without additional cost to the Advisor, would permit the granting of the
foregoing license. In the event that the Advisor has not obtained the rights to
sublicense any Advisor Software to EMC (such software, the "Third-Party
Software"), the Advisor shall use its reasonable efforts (which shall not
include incurring additional cost on the part of the Advisor) to assist EMC in
obtaining licenses to such software directly from the relevant third parties,
which shall include providing to EMC a list of all Third-Party Software used by
the Advisor in connection with the Partnership or the Venture and waiving any
of the Advisor's rights of exclusivity that it may have with respect to its
licensing of such software.
(b) Upon termination of this Agreement for any reason, the
Advisor shall grant EMC the license described in Section 7.8(a) without
additional charge to EMC and EMC shall be responsible for all license fees to
be paid to third parties for the Third-Party Software.
7.9 Deliveries and Retention of Records. The Advisor shall forthwith
upon any termination of this Agreement:
(a) as soon as practicable after such termination, pay over
to EMC, the Partnership or the Venture, as appropriate, all monies
held for the account of EMC, the Partnership or the Venture pursuant
to this Agreement;
(b) as soon as practicable after such termination, deliver to
EMC, the Partnership and the Venture a report containing, among other
things, a statement of Investments covered by this Agreement as of the
date of termination and such other information regarding such
Investments as EMC may reasonably request; and
(c) retain or, to the extent EMC does not then possess such
Investment Information, deliver to EMC or its designee all or such
part thereof and at such time or times as EMC and any other party
entitled to access to such Investment Information pursuant to the
Partnership Agreement or the Venture Agreement so
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requests, all Investment Information for seven years after termination
of this Agreement, provided that the Advisor shall have the right,
subject to Regulatory Requirements, to have such Investment
Information held in the custody of a responsible third party service
provider, and provided further that the Advisor or such third party
service provider shall give EMC and any other party entitled to access
to such Investment Information pursuant to the Partnership Agreement
or the Venture Agreement access to all Investment Information in
accordance with the provisions of Section 2.6 and EMC, the Partnership
or the Venture, as appropriate, shall reimburse the Advisor for its
reasonable costs incurred in retaining such records, including its
costs for the third party service provider and provided further that,
notwithstanding the foregoing, the Advisor shall have the right, at
any time after such termination but subject to Section 7.7, to deliver
to EMC or such other party as may be designated by EMC all such
Investment Information together with any other books or records the
property of the Partnership or the Venture, following the delivery of
which the Advisor shall have no further obligations under this Section
7.9(c).
7.10 Obligations that Survive Termination. The provisions of
Section 4.4, Section 5.2, Article VI, this Article VII and Section 10.1 and
each party's respective rights to bring claims arising in connection with the
statements and obligations set forth in this Agreement shall survive the
termination of this Agreement.
Article VIII
Notices
8.1 Notices. Any notice or other communication provided hereunder
shall be in writing and shall be delivered personally or by telefacsimile with
confirmed answerback or sent by certified, registered and return receipt
requested mail or by a nationally-recognized overnight courier, postage
prepaid, and shall be deemed given when so delivered personally or by
telefacsimile with confirmed answerback or sent by overnight mail or courier
and three days after the date of mailing if sent by certified or registered
mail to the following addresses:
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To EMC:
EREIM Managers Corp.
c/o The Equitable Life Assurance Society
of the United States
1290 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: President
Fax No.: (000) 000-0000
with a copy to:
The Equitable Life Assurance Society
of the United States
1290 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Law Department
Counsel, Real Estate Law Group
Fax No.: (000) 000-0000
To the Advisor:
Equitable Real Estate Investment
Management, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Operating Officer
Fax No.: (000) 000-0000
with a copy to:
Equitable Real Estate Investment
Management, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
Fax No.: (000) 000-0000
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and:
Neptune Real Estate, Inc.
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
Either party hereto may from time to time by notice in writing served
upon the other as aforesaid designate a different mailing address or
telefacsimile number or a different or additional person to which all such
notices or demands to that party thereafter are to be addressed.
Article IX
Definitions
The following terms shall have the following meanings:
"the Agreements" shall mean the Partnership Agreement, the
Venture Agreement and the agreements, instruments and documents described in
Schedule IX.
"Designated Account" shall mean a lockbox account or, with
ELAS's prior approval, a depository account in ELAS's name in a bank designated
by ELAS with such signatories as ELAS shall designate, which signatories may
include officers and employees of the Advisor and/or the appropriate property
manager.
"guidelines" shall mean guidelines, requirements and/or
procedures mutually established by EMC and the Advisor and any modifications
thereof, in each case as approved by the Board of Directors of EMC and by the
Advisor.
"Investment Information" shall mean such books, records,
data, information, instruments, documents, files, reports, manuals, policies,
guidelines and procedures (including without limitation, computerized
materials), as relate to EMC, the Partnership, the Venture and the Investments.
"Investment Information" shall not include any of the foregoing prepared by the
Advisor generally for use in its business or generally for use by its clients.
"Investments" shall mean the Properties and the Mortgage
Loans.
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"Mortgage Loans" shall mean all loans now or hereafter held
by the Venture on the security of real properties or interests therein
(including, without limitation, leasehold interests), and on the security of
personal property, if any, associated with such real property whether junior or
senior to other security interests in such real properties and all extensions,
renegotiations, replacements or renewals thereof. "Mortgage Loans" include any
Mortgage Loans which are deep discount or zero coupon or similar mortgage
notes, including mortgage notes which permit the deferral of interest and which
are acquired with the expectation that interest will be deferred, but do not
include participating mortgage loans made by the Venture and the security
therefor.
"Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of the Partnership dated as of April 23, 1987
among EREIM Managers L.P., MLH Real Estate Associates Limited Partnership, MLH
Real Estate Assignor Inc. and MLH Real Estate Inc., as amended by that certain
Amendment to the Amended and Restated Agreement of Limited Partnership of ML/EQ
Real Estate Portfolio, L.P. dated as of February 8, 1988, among EMC, MLH Real
Estate Inc. and MLH Real Estate Assignor Inc.
"Properties" shall mean the properties in or with respect to
which the Venture, or another partnership or joint venture in which the Venture
now or hereafter shall be a partner or have a direct or indirect interest, now
owns or hereafter acquires an interest (including without limitation,
properties acquired by foreclosure, satisfaction or deed in lieu of a Mortgage
Loan), together with all improvements on the real estate constituting any such
property and replacements or renewals thereof and all personal property which
is used in connection therewith, but excluding Mortgage Loans and security
therefor. "Properties" shall also include participating mortgage loans made by
the Venture and the security therefor.
"Regulatory Authority" shall mean any nation or government,
any state, county, municipality or other political subdivision thereof or any
entity exercising exe cutive, legislative, judicial, regulatory or
administrative functions of or pertaining to government or any rating agency or
entity which sets accounting and/or reporting standards.
"Regulatory Requirement" shall mean any statute, law, rule,
ruling, code, ordinance, decision, official pronouncement, regulation,
requirement, procedure, permit, directive, decree, judgment or order of any
Regulatory Authority now or hereafter in effect, in each case, as and to the
extent available in published or other publicly available form, and, in each
case, as amended from time to time and any interpretation thereof published by
any Regulatory Authority.
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"Venture Agreement" shall mean the Joint Venture Agreement of
the Venture, dated as of March 10, 1988, among the Partnership as Managing
Venturer and EREIM Associates, L.P. as the Equitable Venturer, as amended by
that certain Amendment to the Joint Venture Agreement of the Venture, effective
as of January 1, 1997, among the Partnership as Managing Venturer and EREIM
Associates, L.P. as the Equitable Venturer.
Article X
Miscellaneous
10.1 Dispute Resolution; Arbitration. The Advisor and EMC shall
attempt in good faith to resolve any dispute arising out of or relating to this
Agreement promptly by negotiation between executives who have authority to
settle the dispute and who are at a higher level of management (who may be
officers of EMC's parent in the case of EMC) than the persons with direct
responsibility for administration of this Agreement. All reasonable requests
for information by one party to the other will be honored and all negotiations
shall be confidential and treated as compromise and settlement negotiations. If
the dispute has not been resolved by negotiation within 20 days after either
party notifies the other in writing that a dispute exists, the parties shall
endeavor to settle the dispute by mediation under the then current CPR Model
Mediation Procedure for Business Disputes. The parties have selected Xx. Xxxxx
Eagle of Massachusetts Institute of Technology as the mediator in any such
dispute and he has agreed to serve in that capacity. In the event that
Xx. Xxxxx Eagle is unwilling or unable to serve, the parties have selected Xx.
Xxxxx Xxxxxxxxx of The Xxxxxxx School as an alternative mediator and he has
agreed to serve in that capacity. In the event that Xx. Xxxxx Xxxxxxxxx is
unwilling or unable to serve, the mediator shall be the most senior real
property consultant at Xxxxx Xxxxxxx and Associates at that time. In the event
that he/she is unwilling or unable to serve, the mediator shall be a person of
similar stature selected by the CPR Institute for Dispute Resolution. If the
dispute has not been resolved by such mediation within 30 days following the
submission of such dispute to mediation, either party may submit such dispute
to binding arbitration under the Rules for Non-Administered Arbitration of
Business Disputes of the CPR Institute for Dispute Resolution, and judgment on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In any such arbitration there shall be three arbitrators,
each of whom shall have experience in the real estate investment advisory
industry, and the arbitration shall take place in New York, New York.
10.2 Agreements of EMC. EMC agrees and acknowledges that (a) the
Advisor makes no representation or warranty as to the investment performance of
the Investments or any particular Investment, and (b) immediately following the
execution and delivery hereof, the Advisor will not be in breach of any of its
duties or obligations hereunder. EMC also
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agrees that the Advisor shall be named as an additional insured under the
liability insurance maintained in respect of each Investment to the extent EMC
is able to do so without additional cost to EMC, the Partnership or the
Venture.
10.3 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the provision of investment advisory
and asset management services by the Advisor to EMC whether directly or on
behalf of the Partnership and the Venture and supersedes all prior agreements,
written and oral, with respect thereto. EMC and the Advisor agree that, to the
extent there is any conflict between the duties and obligations required on the
part of the Advisor hereunder in respect of the Partnership or the Venture and
the duties and obligations of EMC as the general partner of the Partnership
under the Partnership Agreement or the duties and obligations of the
Partnership as the managing general partner of the Venture under the Venture
Agreement, the provisions of the Partnership Agreement or the Venture
Agreement, as the case may be, shall control in determining the applicable
duties and obligations of the Advisor to EMC hereunder in respect of the
Partnership or the Venture.
10.4 Amendments and Waivers. This Agreement may be amended, modified,
superseded, canceled, renewed, extended or supplemented, and the terms and
conditions hereof may be waived, only by a written instrument signed by EMC and
the Advisor or, in the case of a waiver, by the party waiving compliance,
provided that no such amendment, modification, renewal, extension or supplement
shall authorize or permit any assets of EMC, the Partnership or the Venture to
be used or directed to purposes other than for the exclusive benefit of EMC,
the Partnership or the Venture, as the case may be. No delay on the part of
either party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of either party
of, or failure on the part of either party to exercise, any right, power or
privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
10.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as at the time in effect.
10.6 Consent to Jurisdiction, etc. (a) Each of the parties hereto
acknowledges that mediation and arbitration under the provisions of Section
10.1 is intended to be the ex clusive method for resolution of disputes arising
under this Agreement, and agrees that neither party to this Agreement shall
commence any action or proceeding in any court with respect to such dispute,
except (i) to enforce Section 10.1; (ii) to obtain provisional judicial
assistance in aid of arbitration under Section 10.1; or (iii) to enforce an
arbitral award made under Section 10.1. The provisions of Section 10.6(b)
through 10.6(d) below and of Section 10.7
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shall be interpreted in a manner consistent with the parties' acknowledgment and
agreement set forth in the preceding sentence.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and each of the parties hereto hereby ir
revocably and unconditionally agrees that all claims in respect of any such
action or pro ceeding may be heard and determined in such New York State court
or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
(c) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby in any New York State or Federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in any manner permitted by law at such party's address as
set forth in Section 8.1.
10.7 Waiver of Punitive and Other Damages and Jury Trial. (a) THE
PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER
PUNITIVE, EXEMPLARY, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY
ARBITRATION, LAWSUIT, LITIGATION OR PRO CEEDING ARISING OUT OF OR RESULTING
FROM ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANS ACTIONS CONTEMPLATED HEREBY.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HERE BY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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(c) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF THE FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREE MENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICA TIONS IN THIS SECTION
10.7.
10.8 Interpretation. This Agreement has been negotiated at arm's
length and between persons sophisticated and knowledgeable in the matters dealt
with in this Agree ment and each party has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law or legal decisions
that would require interpretation of any ambiguities in this Agreement against
the party that has drafted it shall not be applicable and are hereby waived.
The provisions of this Agreement shall be interpreted in a reasonable manner to
effectuate the purpose of the parties and this Agreement.
10.9 Cumulative Remedies. The rights and remedies herein provided are
cumu lative and not exclusive of any rights or remedies which either party may
have hereunder or otherwise at law or in equity.
10.10 Binding Effect. This Agreement and the rights, covenants,
conditions and obligations of the respective parties hereto and any instrument
or agreement executed pursuant hereto shall be binding upon the parties and
their respective successors and assigns.
10.11 Further Assurances. Each of the parties hereto shall execute
such further documents and other papers and perform such further acts as may be
reasonably required or desirable to carry out the provisions hereof.
10.12 Publicity. No publicity release, public statement or
announcement con cerning this Agreement or any Investment or any aspect hereof
or thereof or the transactions contemplated hereby shall be issued by the
Advisor or any affiliate of the Advisor without the prior written approval of
the form and substance thereof by EMC, nor shall any such publicity release,
public statement or announcement which names or otherwise refers to the Advisor
be issued by EMC or any affiliate of EMC without the prior written approval of
the form and substance thereof by the Advisor.
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10.13 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
10.14 Section Headings. The section headings of this Agreement are for
con venience of reference only and shall not be deemed to alter or affect any
provision hereof.
10.15 Severability. Should one or more provisions of this Agreement be
held by any court to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force.
10.16 No Third Party Rights. By execution of this Agreement EMC and
the Advisor do not intend to create any rights of any kind in any third parties
and nothing in this Agreement shall confer any rights upon any person or entity
which is not a party or a successor or permitted assignee of a party to this
Agreement.
10.17 Successors and Assigns. This Agreement shall inure to the
benefit of the parties hereto and their respective successors and assigns to
the extent permitted by Section 4.3.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their indicated officers thereunto duly authorized,
as of the day and year first above written.
EREIM MANAGERS CORP.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
EQUITABLE REAL ESTATE
INVESTMENT MANAGEMENT, INC.
By /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
THE EQUITABLE LIFE INSURANCE SOCIETY OF THE UNITED STATES has caused this
Agreement to be executed by its indicated officer thereunto duly authorized, as
of the day and year first above written, in order to establish and confirm its
agreement to provide the indemnification set forth in Section 6.2 of this
Agreement in accordance with the terms of this Agreement, including without
limitation, Article VI and Sections 10.6 and 10.7.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Investment Officer
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Schedule 5.5.1
List of Continuing Employees
Xxxxxxx X. Xxxxxxxx, Portfolio Manager
Xxxxxxxx X. Xxxxxxxxx, Chief Accountant
Xxxx Xxxxxx, Vice President
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Schedule 5.5.2
List of Employee Positions Subject to EMC Approval
Portfolio Manager
Chief Accountant
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Schedule IX
1. Prospectus of ML/EQ Real Estate Portfolio, L.P. dated April 23, 1987.
2. Agency Agreement dated April 23, 1987 among ML/EQ Real Estate
Portfolio, L.P., EREIM Managers L.P., MLH Real Estate Associates
Limited Partnership, EREIM LP Associates and Xxxxxxx Xxxxx.
3. Letter dated March 10, 1988 from Equitable Real Estate Investment
Management, Inc. to Xxxxxxx Xxxxx, Xxxxxxx Inc. concerning EREIM
Managers Corp.'s obligations and responsibilities under the Agency
Agreement.
4. Agreement between General Partners dated March 10, 1988 between ML/EQ
Real Estate Portfolio, L.P., EREIM Managers L.P., MLH Real Estate
Associates Limited Partnership, MHL Depositary Inc. and EREIM LP
Associates.
5. Participation Agreement dated March 10, 1988 between The Equitable
Life Assurance Society of the United States and EML Associates with
respect to the Zero Coupon Mortgage Note secured by Northland Mall, as
amended on May 3, 1988.
6. Participation Agreement dated March 10, 1988 between The Equitable
Life Assurance Society of the United States and EML Associates with
respect to the Zero Coupon Mortgage Note secured by Brookdale Center,
as amended on May 3, 1988.
7. Investment Guaranty Agreement dated March 10, 1988 between EML
Associates and EREIM LP Associates, as assigned and assumed pursuant
to Assumption Agreement dated March 10, 1988 between EML Associates
and ML/EQ Real Estate Portfolio, L.P.
8. Letter dated March 10, 1988 from Equitable Real Estate Investment
Management, Inc. to Xxxxxxx Xxxxx, Xxxxxxx Inc. concerning the net
worth responsibilities of the general partners of ML/EQ Real Estate
Portfolio, L.P.
