EXHIBIT 10.2
LEASING AND TENANT COORDINATING AGREEMENT
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THIS AGREEMENT, made as of the _____ day of _____________, 1999, between
XXXXX REAL ESTATE FUND XII, L.P., a Georgia limited partnership (the "Owner"),
and XXXXX MANAGEMENT COMPANY, INC., a Georgia corporation (the "Agent").
W I T N E S S E T H :
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WHEREAS, the Owner intends to raise money from the sale of limited
partnership interests for the acquisition or construction of income-producing
improvements on several tracts as yet unspecified but to be acquired by Owner
(the "Partnership Properties"); and
WHEREAS, the Owner intends to employ the Agent to manage any leasable
improvements that may be constructed on the Partnership Properties; and
WHEREAS, the Owner and Agent are entering into this Agreement to establish
the terms and conditions for such services.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained, the Owner and Agent agree as follows:
1. Leasing Agent. The Owner hereby engages the Agent for the term hereof
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as the exclusive leasing and tenant coordinating agent for the improvements to
be developed on the Partnership Properties.
2. Effective Date and Term. This Agreement shall become effective upon
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the date hereof. The initial term of this Agreement shall be for a period of 12
months beginning on the date the Owner notifies the Agent in writing that one or
more Partnership Properties are available for lease. The term shall be
automatically extended for an additional one year period at the end of each year
unless the Owner or Agent give 60 days written notice of their intention not to
renew this Agreement. Both the Owner and the Agent may terminate this Agreement
at an earlier date upon 60 days written notice to the other party. The Agent
may engage in preleasing activities as of the date hereof.
3. Leasing Functions. The Agent, by the execution hereof, accepts the
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Owner's engagement of the Agent as the exclusive leasing and tenant coordination
agent of the Partnership Properties for the term hereof, and agrees to use its
best efforts to perform the following specific functions:
(a) to seek diligently tenants and obtain signed leases for the
Partnership Properties under the terms prescribed by the Owner;
(b) to coordinate the planning of each tenant's space with the
architect and obtain such tenant's approval of the plan;
(c) to coordinate the construction of each tenant's space with the
contractor or the Owner and prepare an accounting of tenant overage costs (if
any) for such tenant;
(d) to coordinate each tenant's moving into its completed offices; and
(e) not later than 30 days before the anniversary of this Agreement and
extensions thereof, the Agent shall prepare and submit to the Owner for its
approval a marketing and leasing plan
for the Partnership Properties for the calendar year immediately following such
submission. The leasing plan shall be in the form approved by the Owner prior
to the date thereof. As often as reasonably necessary during the period covered
by any such plan, the Agent may submit to the Owner for its approval an updated
plan incorporating such changes as shall be necessary to reflect leasing
experience during such period. If the Owner does not disapprove any such plan
within 30 days after receipt thereof by the Owner, such plan shall be deemed
approved. If the Owner shall disapprove any such plan, it shall so notify the
Agent within said 30 day period and explain the reasons therefor.
4. Reimbursement. The Agent shall be reimbursed by the Owner for all
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expenses of the Partnership Properties that the Agent incurs in connection with
the performance of its duties and obligations pursuant to this Agreement,
provided that such expenses are expressly authorized by the Owner. Such
reimbursements may include salaries and other employee-related expenses, travel
and other out-of-pocket expenses directly related to a specific Partnership
Property to the extent permitted by the Statement of Policy Regarding Real
Estate Programs adopted on October 9 and 12, 1988, effective January 1, 1989, by
the North American Securities Administrators Association, Inc., as amended (the
"NASAA Guidelines").
5. Compensation of the Agent.
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5.1 Agent. For performing the functions outlined in Section 3 the Agent
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shall be compensated as follows:
(a) The Agent shall be paid two percent (2%) of the Gross Revenues
paid monthly from rents collected;
(b) In addition to the compensation paid to the Agent under Section
5.1(a) above, the Agent shall be entitled to receive a separate competitive fee
for the one-time initial rent-up or lease-up of a newly constructed property,
provided said fee is not included in the purchase price of the property paid by
the Owner. For this purpose, a total rehabilitation shall be included in the
phrase "newly constructed." The fee paid the Agent under this section is
intended to comply with Article IV, Section G.3 of the NASAA Guidelines, and in
all instances shall be interpreted in a manner which will comply with said
provision;
(c) The Agent's compensation under Section 5.1(a), but not Section
5.1(b) hereof, shall apply to all renewals, extensions or expansions of leases
which the Agent has originally negotiated; and
(d) For planning and coordinating the construction of any tenant
finish along with the Owner or any architect, contractor or other authorized
person, the payment for which shall be the responsibility of the tenant, the
Agent shall be entitled to receive from any such tenant an amount equal to 5% of
the amount as remitted by the tenant to the Owner or to a representative of the
Owner in payment for such construction.
As used herein, the term "Gross Revenues" shall mean all amounts actually
collected as rents or other charges for the use and occupancy of Partnership
Properties, but shall exclude interest and other investment income of the Owner
and proceeds received by the Owner from a sale, exchange, condemnation, eminent
domain taking, casualty or other disposition of assets of the Owner.
5.2 Co-Brokerage. The Owner agrees that the Agent shall not be
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required to share or co-broker the compensation outlined in Sections 5.1(a) and
(b) with another agent. The parties further agree that the amount paid to other
real estate agents for their brokerage services shall reduce, on a dollar by
dollar basis, the amount paid to the Agent under Section 5.1(b) hereof. Any
commissions due other real estate agents for procuring a tenant shall be paid by
the Owner.
5.3 Sale of Partnership Properties. If the Partnership Properties are
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sold, the Owner agrees to furnish the Agent with an agreement signed by the
purchaser assuming the Owner's obligations to pay compensation earned under
Section 5.1 of this Agreement.
6. Agent's Limited Liability.
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6.1 Agent's Liability. The Agent's liability is limited in the
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following ways:
(a) The Agent shall not be responsible for acts or omissions of any
contractor, any sub-contractor or any of their agents or employees or any other
persons performing any of the work on the Partnership Properties which did not
result from the negligence or misconduct of Agent.
(b) The Agent shall not be responsible for errors or omissions of the
architect, his or its engineers, employees or agents or any other independent
engineer, surveyor or other professionals providing services in connection with
the construction of the Partnership Properties which did not result from the
negligence or misconduct of Agent.
6.2 Indemnification of Owner. In the performance of its duties
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hereunder, the Agent shall diligently endeavor to protect the property rights
and interests of the Owner as vested in the Partnership Properties. The Agent
hereby agrees to indemnify the Owner and hold the Owner harmless from and
against any claims, actions, damages, expenses (including, without limitation,
attorneys' and accountants' fees and court costs) and liabilities relating to
the negligence or misconduct of the Agent.
7. Notices. Any notice which may be or is required to be given hereunder
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shall be deemed given when received by personal delivery or by registered or
certified United States mail, postage prepaid, return receipt requested,
addressed to the Owner and/or the Agent at the addresses set forth after their
respective name below, or at such different addresses as either party shall have
theretofore advised the other party in writing in accordance with this Section
7.
Owner: Xxxxx Real Estate Fund XII, L.P.
c/x Xxxxx Partners, L.P.
General Partner
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Agent: Xxxxx Management Company, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
8. Limitation. Except as otherwise specifically provided in this
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Agreement, the Agent shall have no right to incur any liability on behalf of the
Owner or to bind the Owner by any contract or obligation.
9. Activities of Agent. The obligations of the Agent pursuant to the
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terms and provisions of this Agreement shall not be construed to preclude the
Agent from engaging in other activities or business ventures, whether or not
such other activities or ventures are in competition with the Partnership
Properties or the business of the Owner.
10. Independent Contractor. The Agent and the Owner shall not be
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construed as joint venturers or partners of each other pursuant to this
Agreement, and neither shall have the power to bind or obligate the other except
as set forth herein. In all respects the status of the Agent to the Owner under
this Agreement is that of an independent contractor.
11. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia.
12. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
13. Entire Agreement. This Agreement contains the entire understanding
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and all agreements between the parties hereto respecting the leasing and
coordinating of tenant improvements on the Partnership Properties. There are no
representations, agreements, arrangements or understandings, oral or written,
among the parties hereto relating to the leasing and tenant coordinating of the
improvements on the Partnership Properties which are not fully expressed herein.
14. Section Headings. The section headings in this Agreement are inserted
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only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Agreement or in any way affect this
Agreement.
15. Disputes. If there shall be a dispute among the Agent and the Owner
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relating to this 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.
16. Binding Agreement. This Agreement shall be binding upon the parties
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hereto and their successors and assigns. This Agreement shall not be changed
orally, but may be changed only by a written agreement signed by the Owner and
the Agent. No waiver or any breach of any covenant, condition or agreement
contained herein shall be construed to be a subsequent waiver of that covenant,
condition or agreement or of any subsequent breach thereof or of this Agreement.
17. Assignment. Agent may delegate partially or in full its duties and
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rights under this Agreement but only with the vote of a majority in interest of
the Limited Partners of the Owner. Except as provided in the immediately
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
OWNER AGENT
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XXXXX REAL ESTATE FUND XII, X.X. XXXXX MANAGEMENT COMPANY, INC.,
A Georgia Limited Partnership A Georgia Corporation
By: XXXXX PARTNERS, L.P.,
A Georgia Limited Partnership By:_________________________________
General Partner Xxx X. Xxxxx, III
President
By: XXXXX CAPITAL, INC., Attest:
A Georgia Corporation
General Partner By:________________________________
Name:______________________________
Title:_____________________________
By:____________________
Xxx X. Xxxxx, III
President
Attest:
By:________________________
Name:______________________
Title:_____________________
By:____________________________
XXX X. XXXXX, III
General Partner
