EXHIBIT 10.1
AMENDED AND RESTATED PROPERTY MANAGEMENT AND LEASING AGREEMENT
This AMENDED AND RESTATED PROPERTY MANAGEMENT AND LEASING AGREEMENT
(this "Management Agreement") is made and entered into as of the 2nd day of
June, 2003, by and among BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a
Texas limited partnership (the "Partnership") and HPT MANAGEMENT SERVICES LP, a
Texas limited partnership (the "Manager").
WHEREAS, the Partnership and Manager previously entered into that
certain Property Management and Leasing Agreement dated February 14, 2003 (the
"Original Management Agreement"); and
WHEREAS, the Partnership intends to continue to raise money from the
sale of its limited partnership interests to be used, net of payment of certain
offering costs and expenses, for investment in the acquisition or construction
of income-producing real estate to be acquired and held by Owner (as hereinafter
defined); and
WHEREAS, Owner intends to continue to retain Manager to manage and
coordinate the leasing of the real estate properties acquired by Owner under the
terms and conditions set forth in this Management Agreement; and
WHEREAS, the parties desire to amend and restate the Original Management
Agreement in its entirety in accordance with the terms and provisions hereof;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree, as follows:
ARTICLE I
DEFINITIONS
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Management Agreement, and the definitions of such terms are
equally applicable both to the singular and plural forms thereof:
1.1 "Affiliate" means, with respect to any Person, (i) any Person directly
or indirectly owning, controlling or holding, with the power to vote, 10% or
more of the outstanding voting securities of such other Person; (ii) any Person
10% or more of whose outstanding voting securities are directly or indirectly
owned, controlled or held, with the power to vote, by such other Person; (iii)
any Person directly or indirectly controlling, controlled by or under common
control with such other Person; (iv) any executive officer, director, trustee or
general partner of such other Person; and (v) any legal entity for which such
Person acts as an executive officer, director, trustee or general partner.
1.2 "Gross Revenues" means all amounts actually collected as rents or other
charges for the use and occupancy of the Properties, but shall exclude interest
and other investment income of Owner and proceeds received by Owner for a sale,
exchange, condemnation, eminent domain taking, casualty or other disposition of
assets of Owner.
1.3 "Improvements" means buildings, structures, equipment from time to time
located on the Properties and all parking and common areas located on the
Properties.
1.4 "Intellectual Property Rights" means all rights, titles and interests,
whether foreign or domestic, in and to any and all trade secrets, confidential
information rights, patents, invention rights, copyrights, service marks,
trademarks, know-how, or similar intellectual property rights and all
applications and rights to apply for such rights, as well as any and all moral
rights, rights of privacy, publicity and similar rights and license rights of
any type under the laws or regulations of any governmental, regulatory, or
judicial authority, foreign or domestic and all renewals and extensions thereof.
1.5 "Lease" means, unless the context otherwise requires, any lease or
sublease made by Owner as landlord or by its predecessor.
1.6 "Owner" means the Partnership and any joint venture, limited liability
company or other Affiliate of the Partnership that owns, in whole or in part, on
behalf of the Partnership, any Properties.
1.7 "Person" means an individual, corporation, association, business trust,
estate, trust, partnership, limited liability company or other legal entity.
1.8 "Properties" means all real estate properties owned by Owner and all
tracts as yet unspecified but to be acquired by Owner containing
income-producing improvements or on which Owner will construct income-producing
improvements.
1.9 "Proprietary Properties" means all modeling algorithms, tools, computer
programs, know-how, methodologies, processes, technologies, ideas, concepts,
skills, routines, subroutines, operating instructions and other materials and
aides used in performing the duties set forth in Article 2 that relate to
management advice, services and techniques regarding current and potential
Properties, and all modifications, enhancements and derivative works of the
foregoing.
ARTICLE II
APPOINTMENT OF MANAGER; SERVICES TO BE PERFORMED
2.1 APPOINTMENT OF MANAGER. Owner hereby engages and retains Manager as the
manager and as tenant coordinating agent of the Properties and Manager hereby
accepts such appointment on the terms and conditions hereinafter set forth, it
being understood that this Management Agreement shall cause Manager to be, at
law, Owner's agent upon the terms contained herein.
2.2 GENERAL DUTIES. Manager shall devote its best efforts to performing its
duties hereunder to manage, operate, maintain and lease the Properties in a
diligent, careful and vigilant manner. The services of Manager are to be of
scope and quality not less than those generally performed by professional
property managers of other similar properties in the area. Manager shall make
available to Owner the full benefit of the judgment, experience and advice of
the members of Manager's organization and staff with respect to the policies to
be pursued by Owner relating to the operation and leasing of the Properties.
2.3 SPECIFIC DUTIES. Manager's duties include the following:
(a) LEASE OBLIGATIONS. Manager shall perform all duties of the
landlord under all Leases insofar as such duties relate to operation,
maintenance, and day-to-day management. Manager shall also provide or cause to
be provided, at Owner's expense, all services normally provided to tenants of
like premises, including where applicable and without limitation, gas,
electricity or other utilities required to
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be furnished to tenants under Leases, normal repairs and maintenance, and
cleaning, and janitorial service. Manager shall arrange for and supervise the
performance of all installations and improvements in space leased to any tenant
which are either expressly required under the terms of the lease of such space
or which are customarily provided to tenants.
(b) MAINTENANCE. Manager shall cause the Properties to be maintained
in the same manner as similar properties in the area. Manager's duties and
supervision in this respect shall include, without limitation, cleaning of the
interior and the exterior of the Improvements and the public common areas on the
Properties and the making and supervision of repair, alterations, and decoration
of the Improvements, subject to and in strict compliance with this Management
Agreement and the Leases. Construction activities undertaken by Manager, if any,
will be limited to activities related to the management, operation, maintenance,
and leasing of the Property (e.g., repairs, renovations, and leasehold
improvements).
(c) LEASING FUNCTIONS. Manager shall coordinate the leasing of the
Properties and shall negotiate and use its best efforts to secure executed
Leases from qualified tenants, and to execute same on behalf of Owner, if
requested, for available space in the Properties, such Leases to be in form and
on terms approved by Owner and Manager, and to bring about complete leasing of
the Properties. Manager shall be responsible for the hiring of all leasing
agents, as necessary for the leasing of the Properties, and to otherwise oversee
and manage the leasing process on behalf of Owner.
(d) NOTICE OF VIOLATIONS. Manager shall forward to Owner promptly
upon receipt all notices of violation or other notices from any governmental
authority, and board of fire underwriters or any insurance company, and shall
make such recommendations regarding compliance with such notice as shall be
appropriate.
(e) PERSONNEL. Any personnel hired by Manager to maintain, operate
and lease the Property shall be the employees or independent contractors of
Manager and not of Owner. Manager shall use due care in the selection and
supervision of such employees or independent contractors. Manager shall be
responsible for the preparation of and shall timely file all payroll tax reports
and timely make payments of all withholding and other payroll taxes with respect
to each employee.
(f) UTILITIES AND SUPPLIES. Manager shall enter into or renew
contracts for electricity, gas, steam, landscaping, fuel, oil, maintenance and
other services as are customarily furnished or rendered in connection with the
operation of similar rental property in the area.
(g) EXPENSES. Manager shall analyze all bills received for services,
work and supplies in connection with maintaining and operating the Properties,
pay all such bills when due, and, if requested by Owner, pay, when due, utility
and water charges, sewer rent and assessments, and any other amount payable in
respect to the Properties. All bills shall be paid by Manager within the time
required to obtain discounts, if any. Owner may from time to time request that
Manager forward certain bills to Owner promptly after receipt, and Manager shall
comply with any such request. Manager shall pay all bills, assessments, real
property taxes, insurance premiums and any other amount payable in respect to
the Properties out of the Account (as hereinafter defined). All expenses shall
be billed at net cost (i.e., less all rebates, commissions, discounts and
allowances, however designed).
(h) MONIES COLLECTED. Manager shall timely collect all rent and
other monies, in the form of a check or money order, from tenants and any sums
otherwise due Owner with respect to the Properties in the ordinary course of
business. Owner authorizes Manager to request, demand, collect and provide
receipt for all such rent and other monies and to institute legal proceedings in
the name of Owner for the collection thereof and for the dispossession of any
tenant in default under its Lease.
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(i) BANKING ACCOMMODATIONS. Manager shall establish and maintain a
separate checking account (the "Account") for funds relating to the Properties.
All monies deposited from time to time in the Account shall be deemed to be
trust funds and shall be and remain the property of Owner and shall be withdrawn
and disbursed by Manager for the account of Owner only as expressly permitted by
this Management Agreement for the purposes of performing the obligations of
Manager hereunder. No monies collected by Manager on Owner's behalf shall be
commingled with funds of Manager. The Account shall be maintained, and monies
shall be deposited therein and withdrawn therefrom, in accordance with the
following:
(i) All sums received from rents and other income from the
Properties shall be promptly deposited by Manager in the
Account. Manager shall have the right to designate two or more
persons who shall be authorized to draw against the Account, but
only for purposes authorized by this Management Agreement.
(ii) All sums due to Manager hereunder, whether for
compensation, reimbursement for expenditures, or otherwise, as
herein provided, shall be a charge against the operating
revenues of the Properties and shall be paid and/or withdrawn by
Manager from the Account prior to the making of any other
disbursements therefrom.
(iii) By the 15th day after the end of each month, Manager
shall forward to Owner all monies contained in the Account other
than a reserve of $5,000 and any other amounts otherwise
provided in the budget, which shall remain in the Account.
(j) OWNERSHIP AGREEMENTS. Manager has received copies of (and will
be provided with a copies of future) Agreements of Limited Partnership, Joint
Venture Partnership Agreements and Operating Agreements, each as may be amended
from time to time, of Owner, as applicable (the "Ownership Agreements") and is
familiar with the terms thereof. Manager shall use reasonable care to avoid any
act or omission that, in the performance of its duties hereunder, shall in any
way conflict with the terms of the Ownership Agreements.
(k) SIGNS. Manager shall place and remove, or cause to be placed and
removed, such signs upon the Properties as Manager deems appropriate, subject,
however, to the terms and conditions of the Leases and to any applicable
ordinances and regulations.
2.4 APPROVAL OF LEASES, CONTRACTS, ETC. In fulfilling its duties to Owner,
Manager may and hereby is authorized to enter into any leases, contracts or
agreements on behalf of Owner in the ordinary course of the management,
operation, maintenance and leasing of the Property.
2.5 ACCOUNTING, RECORDS AND REPORTS.
(a) RECORDS. Manager shall maintain all office records and books of
account and shall record therein, and keep copies of, each invoice received from
services, work and supplies ordered in connection with the maintenance and
operation of the Properties. Such records shall be maintained on a double entry
basis. Owner and persons designated by Owner shall at all reasonable time have
access to and the right to audit and make independent examinations of such
records, books and accounts and all vouchers, files and all other material
pertaining to the Properties and this Management Agreement, all of which Manager
agrees to keep safe, available and separate from any records not pertaining to
the Properties, at a place recommended by Manager and approved by Owner.
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(b) MONTHLY REPORTS. On or before the 15th day after the end of each
month and during the term of this Management Agreement, Manager shall prepare
and submit to Owner the following reports and statements:
(i) rental collection record;
(ii) monthly operating statement;
(iii) copy of cash disbursements ledger entries for such
period, if requested;
(iv) copy of cash receipts ledger entries for such period, if
requested;
(v) the original copies of all contracts entered into by
Manager on behalf of Owner during such period, if requested; and
(vi) copy of ledger entries for such period relating to
security deposits maintained by Manager, if requested.
(c) BUDGETS AND LEASING PLANS. Not later than November 15 of each
calendar year, Manager shall prepare and submit to Owner for its approval an
operating budget and a marketing and leasing plan on each Property for the
calendar year immediately following such submission. In connection with any
acquisition of a Property by Owner, Manager shall prepare a budget and marketing
and leasing plan for the remainder of the calendar year. The budget and
marketing and leasing plan shall be in the form of the budget and plan approved
by Owner prior to the date thereof. As often as reasonably necessary during the
period covered by any such budget, Manager may submit to Owner for its approval
an updated budget or plan incorporating such changes as shall be necessary to
reflect cost over-runs and the like during such period. If Owner does not
disapprove any such budget within thirty (30) days after receipt thereof by
Owner, such budget shall be deemed approved. If Owner shall disapprove any such
budget or plan, it shall so notify Manager within said 30-day period and explain
the reasons therefor. If Owner disapproves of any budget or plan, Manager shall
submit a revised budget or plan, as applicable, within ten (10) days of receipt
of the notice of disapproval, and Owner shall have ten (10) days to provide
notice to Manager if it disapproves of any such revised budget or plan. Manager
will not incur any costs other than those estimated in any budget except for:
(i) tenant improvements and real estate commissions required
under a Lease;
(ii) maintenance or repair costs under $5,000 per Property;
(iii) costs incurred in emergency situations in which action
is immediately necessary for the preservation or safety of the
Property, or for the safety of occupants or other persons (or to
avoid the suspension of any necessary service of the Property);
(iv) expenditures for real estate taxes and assessment; and
(v) maintenance supplies calling for an aggregate purchase
price less than $25,000 per annum for all Properties.
Budgets prepared by Manager shall be for planning and informational purposes
only, and Manager shall have no liability to Owner for any failure to meet any
such budget. However, Manager will use its best efforts to operate within the
approved budget.
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(d) LEGAL REQUIREMENTS. Manager shall execute and file when due all
forms, reports, and returns required by law relating to the employment of its
personnel. Manager shall be responsible for notifying Owner in the event it
receives notice that any Improvement on a Property or any equipment therein does
not comply with the requirements of any statute, ordinance, law or regulation of
any governmental body or of any public authority or official thereof having or
claiming to have jurisdiction thereover. Manager shall promptly forward to Owner
any complaints, warnings, notices or summonses received by it relating to such
matters. Owner represents that to the best of its knowledge each of its
Properties and any equipment thereon will upon acquisition by Owner comply with
all such requirements. Owner authorizes Manager to disclose the ownership of the
Property by Owner to any such officials. Owner agrees to indemnify, protect,
defend, save and hold Manager and its stockholders, officers, directors,
employees, managers, successors and assigns (collectively, the "Indemnified
Parties") harmless of and from any and all Losses (as defined in Section 3.5(a)
hereof) that may be imposed on them or any or all of them by reason of the
failure of Owner to correct any present or future violation or alleged violation
of any and all present or future laws, ordinances, statutes, or regulations of
any public authority or official thereof, having or claiming to have
jurisdiction thereover, of which it has actual notice.
2.6 GUARANTY OF DEPOSITS. Should Owner acquire real property from Behringer
Development Company LP, a Texas limited partnership ("Behringer Development"),
Manager hereby guarantees the full, prompt and unconditional refund of any
xxxxxxx money deposit paid by Owner to Behringer Development should Owner be
entitled to such refund as a result of (i) the failure of Behringer Development
to develop the property, (ii) the failure of all or a specified portion of the
pre-leased tenants to take possession under their leases for any reason, or
(iii) the inability of Owner to pay the full purchase price at closing.
ARTICLE III
AUTHORITY GRANTED TO MANAGER AND CERTAIN OWNER OBLIGATIONS
3.1 AUTHORITY AS TO TENANTS, ETC. Owner agrees and does hereby give Manager
the following exclusive authority and powers (all of which shall be exercised
either in the name of Manager, as Manager for Owner, or in the name or Owner
entered into by Manager as Owner's authorized agent, and Owner shall assume all
expenses in connection with such matters):
(a) to advertise each Property or any part thereof and to display
signs thereon, as permitted by law;
(b) to lease the Properties to tenants;
(c) to pay all expenses of leasing such Property, including but not
limited to, newspaper and other advertising, signage, banners, brochures,
referral commissions, leasing commissions, finder's fees and salaries, bonuses
and other compensation of leasing personnel responsible for the leasing of the
Property;
(d) to cause references of prospective tenants to be investigated,
it being understood and agreed by the parties hereto that Manager does not
guarantee the creditworthiness or collectibility of accounts receivable from
tenants, users or lessees; and to negotiate new Leases and renewals and
cancellations of existing Leases that shall be subject to Manager obtaining
Owner's approval;
(e) to collect from tenants all or any of the following: a late rent
administrative charge, a non-negotiable check charge, credit report fee, a
subleasing administrative charge and/or broker's commission; and Manager need
not account for such charges and/or commission to Owner;
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(f) to terminate tenancies and to sign and serve in the name of
Owner of each Property such notices as are deemed necessary by Manager;
(i) to institute and prosecute actions to evict tenants and
to recover possession of the Property or portions thereof;
(ii) with Owner's authorization, to xxx for and in the name
of Owner of the Property and recover rent and other sums due; and to
settle, compromise, and release such actions or suits, or reinstate such
tenancies. All expenses of litigation including, but not limited to,
attorneys' fees, filing fees, and court costs that Manager shall incur
in connection with the collecting of rent and other sums, or to recover
possession of any Property or any portion thereof, shall be deemed to be
an operational expense of the Property. Manager and Owner shall concur
on the selection of the attorneys to handle such litigation.
3.2 OPERATIONAL AUTHORITY. Owner agrees and does hereby give Manager the
following exclusive authority and powers (all of which shall be exercised either
in the name of Manager, as Manager for Owner, or in the name or Owner entered
into by Manager as Owner's authorized agent, and Owner shall assume all expenses
in connection with such matters):
(a) to hire, supervise, discharge, and pay all labor required for
the operation and maintenance of each Property including but not limited to on
site personnel, managers, assistant managers, leasing consultants, engineers,
janitors, maintenance supervisors and other employees required for the operation
and maintenance of the Property, including personnel spending a portion of their
working hours (to be charged on a pro rata basis) at the Property. All expenses
of such employment shall be deemed operational expenses of the Property.
(b) to make or cause to be made all ordinary repairs and
replacements necessary to preserve each Property in its present condition and
for the operating efficiency thereof and all alterations required to comply with
lease requirements, and to decorate the Property;
(c) to negotiate and enter into, as Manager of the Property,
contracts for all items on budgets that have been approved by Owner, any
emergency services or repairs for items not exceeding $5,000, appropriate
service agreements and labor agreements for normal operation of the Property,
which have terms not to exceed three years, and agreements for all budgeted
maintenance, minor alterations, and utility services, including, but not limited
to, electricity, gas, fuel, water, telephone, window washing, scavenger service,
landscaping, snow removal, pest exterminating, decorating and legal services in
connection with the Leases and service agreements relating to the Property, and
other services or such of them as Manager may consider appropriate; and
(d) to purchase supplies and pay all bills.
Manager shall use its best efforts to obtain the foregoing services and
utilities for the Property under terms that are as cost-effective and otherwise
favorable to Manager as possible for the quality of services and utilities
required. Owner hereby appoints Manager as Owner's authorized Manager for the
purpose of executing, as Manager for said Owner, all such contracts. In
addition, Owner agrees to specifically assume in writing all obligations under
all such contracts so entered into by Manager, on behalf of Owner of the
Property, upon the termination of this Agreement, and Owner shall indemnify,
protect, save, defend and hold Manager and the other Indemnified Parties
harmless from and against any and all Losses resulting from, arising out of or
in any way related to such contracts and that relate to or concern matters
occurring after termination of this Agreement, but excluding matters arising out
of Manager's negligence
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or misconduct. Manager shall secure the approval of, and execution of
appropriate contracts by, Owner for any non-budgeted and
non-emergency/contingency capital items, alterations or other expenditures in
excess of $5,000 for any one item, securing for each item at least three written
bids, if practicable, or providing evidence satisfactory to Owner that the
contract amount is lower than industry standard pricing, from responsible
contractors. Manager shall have the right from time to time during the term
hereof, to contract with and make purchases from Affiliates of Manager, provided
that contract rates and prices are competitive with other available sources.
Manager may at any time and from time to time request and receive the prior
written authorization of Owner of the Property of any one or more purchases or
other expenditures, notwithstanding that Manager may otherwise be authorized
hereunder to make such purchases or expenditures.
3.3 RENT AND OTHER COLLECTIONS. Owner agrees and does hereby give Manager
the exclusive authority and powers (all of which shall be exercised either in
the name of Manager, as Manager for Owner, or in the name or Owner entered into
by Manager as Owner's authorized agent, and Owner shall assume all expenses in
connection with such matters) to collect rents and/or assessments and other
items, including but not limited to tenant payments for real estate taxes,
property liability and other insurance, damages and repairs, common area
maintenance, tax reduction fees and all other tenant reimbursements,
administrative charges, proceeds of rental interruption insurance, parking fees,
income from coin operated machines and other miscellaneous income, due or to
become due and give receipts therefor and to deposit all such Gross Revenue
collected hereunder in the Account. Manager may endorse any and all checks
received in connection with the operation of any Property and drawn to the order
of Owner, and Owner shall, upon request, furnish Manager's depository with an
appropriate authorization for Manager to make such endorsement. Manager shall
also have the exclusive authority to collect and handle tenants' security
deposits, including the right to apply such security deposits to unpaid rent,
and to comply, on behalf of Owner of the Property, with applicable state or
local laws concerning security deposits and interest thereon, if any. Manager
shall not be required to advance any monies for the care or management of any
Property. Owner agrees to advance all monies necessary therefor. If Manager
shall elect to advance any money in connection with a Property, Owner agrees to
reimburse Manager forthwith and hereby authorizes Manager to deduct such
advances from any monies due Owner. In connection with any insured losses or
damages relating to any Property, Manager shall have the exclusive authority to
handle all steps necessary regarding any such claim; provided that Manager will
not make any adjustments or settlements in excess of $10,000 without Owner's
prior written consent.
3.4 PAYMENT OF EXPENSES. Owner agrees and does hereby give Manager the
exclusive authority and power (all of which shall be exercised either in the
name of Manager, as Manager for Owner, or in the name or Owner entered into by
Manager as Owner's authorized agent, and Owner shall assume all expenses in
connection with such matters) to pay all expenses of the Property from the Gross
Revenue collected in accordance with Section 3.3 above, from the Account. It is
understood that the Gross Revenue will be used first to pay the compensation to
Manager as contained in Article 5 below, then operational expenses and then any
mortgage indebtedness, including real estate tax and insurance impounds, but
only as directed by Owner in writing and only if sufficient Gross Revenue is
available for such payments. Nothing in this Agreement shall be interpreted in
such a manner as to obligate Manager to pay from Gross Revenue, any expenses
incurred by Owner prior to the commencement of this Agreement, except to the
extent Owner advances additional funds to pay such expenses.
3.5 CERTAIN OWNER INDEMNIFICATION OBLIGATIONS.
(a) ON TERMINATION. In the event this Agreement is terminated for
any reason prior to the expiration of its original term or any renewal term,
Owner shall indemnify, protect, defend, save and hold Manager and all of the
other Indemnified Parties harmless from and against any and all claims, causes
of action, demands, suits, proceedings, loss, judgments, damage, awards, liens,
fines, costs, attorneys' fees
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and expenses, of every kind and nature whatsoever (collectively, "Losses"),
which may be imposed on or incurred by Manager by reason of the negligence or
misconduct of Owner.
(b) PROPERTY DAMAGE, ETC. Owner agrees to indemnify, defend,
protect, save and hold Manager and all of the other Indemnified Parties harmless
from any and all Losses in connection with or in any way related to the Property
and from liability for damage to the Property and injuries to or death of any
person whomsoever, and damage to property; provided, however, that such
indemnification shall not extend to any such Losses arising out of the
negligence or misconduct of Manager or any of the other Indemnified Parties.
Manager shall not be liable for any error of judgment or for any mistake of fact
or law, or for any thing which it may do or refrain from doing, except in cases
of negligence or misconduct.
3.6 ENVIRONMENTAL MATTERS. Owner hereby warrants and represents to Manager
that to the best of Owner's knowledge, no Property, upon acquisition by Owner,
nor any part thereof, will be used to treat, deposit, store, dispose of or place
any hazardous substance that may subject Manager to liability or claims under
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C.A. Section 9607) or any constitutional provision, statute, ordinance,
law, or regulation of any governmental body or of any order or ruling of any
public authority or official thereof, having or claiming to have jurisdiction
thereover. Furthermore, Owner agrees to indemnify, protect, defend, save and
hold Manager and all of the other Indemnified Parties from any and all Losses
involving, concerning or in any way related to any past, current or future
allegations regarding treatment, depositing, storage, disposal or placement by
any party other than Manager of hazardous substances on the Property.
3.7 LEGAL STATUS OF PROPERTIES. Owner represents that to the best of its
knowledge each Property and any equipment thereon, when acquired by Owner, will
comply with all legal requirements and authorizes Manager to disclose the
identity of the Owner of the Property to any such officials and agrees to
indemnify, protect, defend, save and hold Manager and the other Indemnified
Parties harmless of and from any and all Losses that may be imposed on them or
any of them by reason of the failure of Owner to correct any present or future
violation or alleged violation of any and all present or future laws,
ordinances, statutes, or regulations of any public authority or official
thereof, having or claiming to have jurisdiction thereover, of which it has
actual notice. In the event it is alleged or charged that any Improvement or any
equipment on a Property or any act or failure to act by Owner with respect to
the Property or the sale, rental, or other disposition thereof fails to comply
with, or is in violation of, any of the requirements of any constitutional
provision, statute, ordinance, law, or regulation of any governmental body or
any order or ruling of any public authority or official thereof having or
claiming to have jurisdiction thereover, and Manager, in its sole and absolute
discretion, considers that the action or position of Owner, with respect thereto
may result in damage or liability to Manager, Manager shall have the right to
cancel this Agreement at any time by written notice to Owner of its election so
to do, which cancellation shall be effective upon the service of such notice.
Such cancellation shall not release the indemnities of Owner set forth in this
Agreement and shall not terminate any liability or obligation of Owner to
Manager for any payment, reimbursement, or other sum of money then due and
payable to Manager hereunder.
3.8 EXTRAORDINARY PAYMENTS. Owner agrees to give adequate advance written
notice to Manager if Owner desires that Manager make any extraordinary payment,
out of Gross Revenue, to the extent funds are available after the payment of
Manager's compensation as provided for herein and all operational expenses, of
mortgage indebtedness, general taxes, special assessments, or fire, boiler or
any other insurance premiums.
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ARTICLE IV
EXPENSES
4.1 OWNER'S EXPENSES. Except as otherwise specifically provided, all costs
and expenses incurred hereunder by Manager in fulfilling its duties to Owner
shall be for the account of and on behalf of Owner. Such costs and expenses
shall include the wages and salaries and other employee-related expenses of all
on-site and off-site employees of Manager who are engaged in the operation,
management, maintenance and leasing or access control of the Properties,
including taxes, insurance and benefits relating to such employees, and legal,
travel and other out-of-pocket expenses that are directly related to the
management of specific Properties. All costs and expenses for which Owner is
responsible under this Management Agreement shall be paid by Manager out of the
Account. In the event the Account does not contain sufficient funds to pay all
said expenses, Owner shall fund all sums necessary to meet such additional costs
and expenses.
4.2 MANAGER'S EXPENSES. Manager shall, out of its own funds, pay all of its
general overhead and administrative expenses.
ARTICLE V
MANAGER'S COMPENSATION
5.1 MANAGEMENT AND LEASING FEES. Commencing on the date hereof, Owner shall
pay Manager property management fees in an amount equal to the lesser of (a)
fees which are competitive for similar services in the same geographic area or
(b) (1) in the case of industrial and commercial properties which are not leased
on a long-term (ten or more years) net lease basis, four and one-half percent
(4.5%) of Gross Revenues and (2) in the case of industrial and commercial
properties which are leased on a long-term (ten or more years) net lease basis,
one percent (1.0%) of Gross Revenues plus a one-time initial leasing fee of
three percent (3.0%) of Gross Revenues on each lease payable over the first five
full years of the original term of the lease. As used herein, the term "net
lease" shall mean a lease which requires the tenant to coordinate and pay
directly all real estate taxes, sales and use taxes, utilities, insurance and
other operating expenses relating to the leased property. In addition, except to
the extent that compensation for leasing services is specifically included in
the foregoing property management fees, Owner shall also pay Manager a separate
fee for the leases of new tenants and renewals of leases with existing tenants
in an amount not to exceed the fee customarily charged by others rendering
similar services in the same geographic area; provided, however, that in no
event may the aggregate of all property management fees and leasing fees paid to
Manager exceed six percent (6.0%) of Gross Revenues, and further provided that
the foregoing limitation is not intended to preclude the payment of a separate
competitive fee for the one-time initial rent-up or leasing-up of a newly
constructed property or the total rehabilitation of a property if such service
is not included in the purchase price of the property. The property management
fees payable hereunder shall be paid on a monthly basis from the rental income
received from the Properties over the term of this Management Agreement.
Manager's compensation under this Section 5.1 shall apply to all renewals,
extensions or expansions of Leases that Manager has originally negotiated. In
the event Manager assists with planning and coordinating the construction of any
tenant-paid finish-out or improvements, Manager shall be entitled to receive
from any such tenant an amount equal to not greater than five percent (5.0%) of
the cost of such tenant improvements.
5.2 AUDIT ADJUSTMENT. If any audit of the records, books or accounts
relating to the Properties discloses an overpayment or underpayment of
management and leasing fees, Owner or Manager shall promptly pay to the other
party the amount of such overpayment or underpayment, as the case may be. If
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such audit discloses an overpayment of management and leasing fees for any
fiscal year of more than the correct fees for such fiscal year, Manager shall
bear the cost of such audit.
ARTICLE VI
INSURANCE AND INDEMNIFICATION
6.1 INSURANCE TO BE CARRIED.
(a) Manager shall obtain and keep in full force and effect insurance
on the Properties against such hazards as Owner and Manager shall deem
appropriate, but in any event insurance sufficient to comply with the Leases and
Ownership Agreements shall be maintained. All liability policies shall provide
sufficient insurance satisfactory to both Owner and Manager and shall contain
waivers of subrogation for the benefit of Manager.
(b) Manager shall obtain and keep in full force and effect, in
accordance with the laws of the state in which each Property is located,
employer's liability insurance applicable to and covering all employees of
Manager at the Properties and all persons engaged in the performance of any work
required hereunder, and Manager shall furnish Owner certificates of insurers
naming Owner as a co-insured and evidencing that such insurance is in effect. If
any work under this Management Agreement is subcontracted as permitted herein,
Manager shall include in each subcontract a provision that the subcontractor
shall also furnish Owner with such a certificate.
6.2 INSURANCE EXPENSES. Premiums and other expenses of such insurance, as
well as any applicable payments in respect of deductibles shall be borne by
Owner.
6.3 COOPERATION WITH INSURERS. Manager shall cooperate with and provide
reasonable access to the Properties to representatives of insurance companies
and insurance brokers or agents with respect to insurance that is in effect or
for which application has been made. Manager shall use its best efforts to
comply with all requirements of insurers.
6.4 ACCIDENTS AND CLAIMS. Manager shall promptly investigate and shall
report in detail to Owner all accidents, claims for damage relating to
Ownership, operation or maintenance of the Properties, and any damage or
destruction to the Properties and the estimated costs of repair thereof, and
shall prepare for approval by Owner all reports required by an insurance company
in connection with any such accident, claim, damage, or destruction. Such
reports shall be given to Owner promptly, and any report not so given within ten
(10) days after the occurrence of any such accident, claim, damage or
destruction shall be noted in the monthly operating statement delivered to Owner
pursuant to Section 2.5(b). Manager is authorized to settle any claim against an
insurance company arising out of any policy and, in connection with such claim,
to execute proofs of loss and adjustments of loss and to collect and receipt for
loss proceeds.
6.5 INDEMNIFICATION. Manager shall hold Owner harmless from and indemnify
and defend Owner against any and all claims or liability for any injury or
damage to any person or property whatsoever for which Manager is responsible
occurring in, on, or about the Properties, including, without limitation, the
Improvements when such injury or damage shall be caused by the negligence of
Manager, its agents, servants, or employees, except to the extent that Owner
recovers insurance proceeds with respect to such matter. Owner will indemnify
and hold Manager harmless against all liability for injury to persons and damage
to property caused by Owner's negligence and which did not result from the
negligence or misconduct of Manager, except to the extent Manager recovers
insurance proceeds with respect to such matter.
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ARTICLE VII
TERM AND TERMINATION
7.1 TERM. This Agreement shall commence on the date first above written and
shall continue until the seventh (7th) anniversary of such date and thereafter
for successive seven (7) year renewal periods, unless on or before 30 (thirty)
days prior to the date last above mentioned or on or before 30 (thirty) days
prior to the expiration of any such renewal period, Manager shall notify Owner
in writing that it elects to terminate this Agreement, in which case this
Agreement shall be thereby terminated on said last mentioned date. In addition,
and notwithstanding the foregoing, Owner may terminate this Agreement at any
time upon delivery of written notice to Manager not less than 30 (thirty) days
prior to the effective date of termination, in the event of (and only in the
event of) a showing by Owner of willful misconduct, gross negligence, or
deliberate malfeasance by Manager in the performance of Manager's duties
hereunder. In addition, either party may terminate this Agreement immediately
upon the occurrence of any of the following:
(a) A decree or order is rendered by a court having jurisdiction (i)
adjudging Manager as bankrupt or insolvent, or (ii) approving as properly filed
a petition seeking reorganization, readjustment, arrangement, composition or
similar relief for Manager under the federal bankruptcy laws or any similar
applicable law or practice, or (iii) appointing a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of Manager or a substantial part
of the property of Manager, or for the winding up or liquidation of its affairs,
or
(b) Manager (i) institutes proceedings to be adjudicated a voluntary
bankrupt or an insolvent, (ii) consents to the filing of a bankruptcy proceeding
against it, (iii) files a petition or answer or consent seeking reorganization,
readjustment, arrangement, composition or relief under any similar applicable
law or practice, (iv) consents to the filing of any such petition, or to the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency for it or for a substantial part of its property, (v) makes an
assignment for the benefit of creditors, (vi) is unable to or admits in writing
its inability to pay its debts generally as they become due unless such
inability shall be the fault of the other party, or (iv) takes corporate or
other action in furtherance of any of the aforesaid purposes.
7.2 MANAGER'S OBLIGATIONS UPON TERMINATION. Upon the termination of this
Management Agreement, Manager shall have the following duties:
(a) Manager shall deliver to Owner or its designee, all books and
records with respect to the Properties.
(b) Manager shall transfer and assign to Owner, or its designee, all
service contracts and personal property relating to or used in the operation and
maintenance of the Properties, except personal property paid for and owned by
Manager. Manager shall also, for a period of sixty (60) days immediately
following the date of such termination, make itself available to consult with
and advise Owner, or its designee, regarding the operation, maintenance and
leasing of the Properties.
(c) Manager shall render to Owner an accounting of all funds of
Owner in its possession and shall deliver to Owner a statement of management and
leasing fees claimed to be due Manager pursuant to Section 5.1 hereof and shall
cause funds of Owner held by Manager relating to the Properties to be paid to
Owner or its designee.
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7.3 OWNER'S OBLIGATIONS UPON TERMINATION. Owner shall pay or reimburse
Manager for any sums of money due it under this Agreement for services and
expenses prior to termination of this Agreement. All provisions of this
Agreement that require Owner to have insured, or to protect, defend, save, hold
and indemnify or to reimburse Manager shall survive any expiration or
termination of this Agreement and, if Manager is or becomes involved in any
claim, proceeding or litigation by reason of having been Manager of Owner, such
provisions shall apply as if this Agreement were still in effect. The parties
understand and agree that Manager may withhold funds for sixty (60) days after
the end of the month in which this Agreement is terminated to pay bills
previously incurred but not yet invoiced and to close accounts. Should the funds
withheld be insufficient to meet the obligation of Manager to pay bills
previously incurred, Owner will, upon demand, advance sufficient funds to
Manager to ensure fulfillment of Manager's obligation to do so, within ten (10)
days of receipt of notice and an itemization of such unpaid bills.
ARTICLE VIII
MISCELLANEOUS
8.1 NOTICES. All notices, approvals, consents and other communications
hereunder shall be in writing, and, except when receipt is required to start the
running of a period of time, shall be deemed given when delivered in person or
on the fifth day after its mailing by either party by registered or certified
United States mail, postage prepaid and return receipt requested, to the other
party, at the addresses set forth after their respect name below or at such
different addresses as either party shall have theretofore advised the other
party in writing in accordance with this Section 8.1.
Owner: BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, General Partner
Manager: HPT MANAGEMENT SERVICES LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Operating Officer
8.2 GOVERNING LAW; VENUE. This Management Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, and any action
brought to enforce the agreements made hereunder or any action which arises out
of the relationship created hereunder shall be brought exclusively in Dallas
County, Texas.
8.3 ASSIGNMENT. Manager may delegate partially or in full its duties and
rights under this Management Agreement but only with the prior written consent
of Owner. Owner acknowledges and agrees that any or all of the duties of Manager
as contained herein may be delegated by Manager and performed by a person or
entity ("Submanager") with whom Manager contracts for the purpose of performing
such duties. Owner specifically grants Manager the authority to enter into such
a contract with a Submanager; provided that, unless Owner otherwise agrees in
writing with such Submanager, Owner shall have no liability or responsibility to
any such Submanager for the payment of the Submanager's fee or for reimbursement
to the Submanager of its expenses or to indemnify the Submanager in any manner
for any matter; and provided further that Manager shall require such Submanager
to agree, in the written agreement setting forth the duties and obligations of
such Submanager, to indemnify Owner for all Losses incurred by Owner as a result
of the gross negligence or willful misconduct of the Submanager, except that
such indemnity shall not be required to the extent that
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Owner recovers insurance proceeds with respect to such matter. Any contract
entered into between Manager and a Submanager pursuant to this Section 8.3 shall
be consistent with the provisions of this Agreement, except to the extent Owner
otherwise specifically agrees in writing. This Management Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
8.4 THIRD PARTY LEASING SERVICES. Manager acknowledges that from time to
time Owner may determine that it is in the best interests of Owner to retain a
third party to provide certain leasing services with respect to certain
Properties and to compensate such third party for such leasing services. Upon
the prior written consent of Manager, Owner shall have the authority to enter
into such a contract for leasing services with a third party (a "Third Party
Leasing Agreement"); provided that Manager shall have no liability or
responsibility to Owner for any of the duties and obligations undertaken by such
party, and Owner agrees to indemnify Manager for all Losses incurred by Manager
as a result of acts of such third party pursuant to the Third Party Leasing
Agreement. To the extent that leasing services are specifically required to be
performed by a third party pursuant to such Third Party Leasing Agreement,
Manager shall have no obligation to perform such leasing services and Owner
shall have no obligation to Manager for leasing fees pursuant to Section 5.1
hereof.
8.5 THIRD PARTY MANAGEMENT SERVICES. Manager acknowledges that from time to
time Owner may acquire interests in Properties in which Owner does not control
the determination of the party that is engaged to provide property management
and other services to be provided by Manager with respect to all Properties
acquired by Owner hereunder. Upon the prior written consent of Manager, Owner
shall have the authority to acquire such non-controlling interests in Properties
for which a third party provides some or all of the services otherwise required
to be performed by Manager hereunder (a "Third Party Management Agreement");
provided that Manager shall have no liability or responsibility to Owner for any
of the duties and obligations undertaken by such third party, and Owner agrees
to indemnify Manager for all Losses incurred by Manager as a result of the acts
of such third party pursuant to the Third Party Management Agreement. To the
extent that property management and other services are specifically required to
be performed by a third party pursuant to such Third Party Management Agreement,
Manager shall have no obligation to perform such services and Owner shall have
no obligation to Manager for compensation for such services pursuant to Section
5.1 hereof.
8.6 NO WAIVER. The failure of Owner to seek redress for violation or to
insist upon the strict performance of any covenant or condition of this
Management Agreement shall not constitute a waiver thereof for the future.
8.7 AMENDMENTS. This Management Agreement may be amended only by an
instrument in writing signed by the party against whom enforcement of the
amendment is sought.
8.8 HEADINGS. The headings of the various subdivisions of this Management
Agreement are for reference only and shall not define or limit any of the terms
or provisions hereof.
8.9 COUNTERPARTS. This Management Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Management Agreement to produce or account for
more than one such counterpart.
8.10 ENTIRE AGREEMENT. This Management Agreement contains the entire
understanding and all agreements between Owner and Manager respecting the
management of the Properties, and supersedes and replaces the Original
Management Agreement in its entirety. There are no representations, agreements,
arrangements or understandings, oral or written, between Owner and Manager
relating to the management of the Properties that are not fully expressed
herein.
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8.11 DISPUTES. If there shall be a dispute between Owner and Manager relating
to this Management Agreement resulting in litigation, the prevailing party in
such litigation shall be entitled to recover from the other party to such
litigation such amount as the court shall fix as reasonable attorneys' fees.
8.12 ACTIVITIES OF MANAGER. The obligations of Manager pursuant to the terms
and provisions of this Management Agreement shall not be construed to preclude
Manager from engaging in other activities or business ventures, whether or not
such other activities or ventures are in competition with Owner or the business
of Owner.
8.13 INDEPENDENT CONTRACTOR. Manager and Owner shall not be construed as
joint venturers or partners of each other pursuant to this Management Agreement,
and neither shall have the power to bind or obligate the other except as set
forth herein. In all respects, the status of Manger to Owner under this
Agreement is that of an independent contractor.
8.14 NO THIRD-PARTY RIGHTS. Nothing expressed or referred to in this
Management Agreement will be construed to give any Person other than the parties
to this Management Agreement any legal or equitable right, remedy or claim under
or with respect to this Management Agreement or any provision of this Management
Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to Section 8.3.
8.15 OWNERSHIP OF PROPRIETARY PROPERTY. The Manager retains ownership of and
reserves all Intellectual Property Rights in the Proprietary Property. To the
extent that Owner has or obtains any claim to any right, title or interest in
the Proprietary Property, including without limitation in any suggestions,
enhancements or contributions that Owner may provide regarding the Proprietary
Property, Owner hereby assigns and transfers exclusively to the Manager all
right, title and interest, including without limitation all Intellectual
Property Rights, free and clear of any liens, encumbrances or licenses in favor
of Owner or any other party, in and to the Proprietary Property. In addition, at
the Manager's expense, Owner will perform any acts that may be deemed desirable
by the Manager to evidence more fully the transfer of ownership of right, title
and interest in the Proprietary Property to the Manager, including but not
limited to the execution of any instruments or documents now or hereafter
requested by the Manager to perfect, defend or confirm the assignment described
herein, in a form determined by the Manager.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Property Management and Leasing Agreement as of the date first above written.
BEHRINGER HARVARD SHORT-TERM
OPPORTUNITY FUND I LP
By:
-----------------------------------------
Xxxxxx X. Xxxxxxxxx, Its General Partner
By: Behringer Harvard Advisors II LP,
Its General Partner
By: Harvard Property Trust, LLC
Its General Partner
By:
--------------------------------
Xxxxxx X. Xxxxxxxxx, President
HPT MANAGEMENT SERVICES LP
By: IMS, LLC, Its General Partner
By:
--------------------------------
Xxxx X. Xxxxxx
Chief Operating Officer
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