MANAGEMENT AND ADVISORY AGREEMENT
Exhibit 6
THIS
AGREEMENT is entered into and shall be effective as of the
18th day
of December, 2020, by and between TRILOGY REAL ESTATE GROUP, LLC, a
Delaware limited liability company (“Manager”) and
TRILOGY MULTIFAMILY INCOME &
GROWTH HOLDINGS I MANAGER, LLC a Delaware limited liability
company (the “Company”).
BACKGROUND STATEMENT
A.
The Company is the
sole member and manager of Trilogy Multifamily Income & Growth
Holdings I, LLC, a Delaware limited liability company (the
“Fund”)
with sole decision making authority over the Fund pursuant to that
certain Limited Liability Agreement of Trilogy Multifamily Income
& Growth Holdings I, LLC dated September 25, 2020 (the
“Limited Liability
Agreement”).
B.
The Company hereby
engages Manager to act as the asset manager of the Fund and Manager
has agreed to accept such engagement on the terms and conditions
set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the background, the mutual
agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Fund and Manager hereby agree as
follows:
SECTION 1
DEFINITIONS
The
following terms shall, when used herein, have the meaning set forth
below:
“Affiliate” shall mean,
with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such
Person, (ii) any officer, director or employee of such Person, or
(iii) any Person who is an officer, director or employee of any
Person described in clause (i) of this definition. For the purposes
of this Agreement, the Fund shall not be considered an Affiliate of
Manager regardless of the control vested the Manager or any
ownership of the Fund by Manager or an Affiliate of
Manager.
“Business Day” shall mean
any day other than a Saturday, Sunday, or a day on which banking
institutions in Chicago, Illinois are authorized or obligated by
Law or executive order to be closed.
“Commencement Date” shall
mean the date of this Agreement.
“Compensation” shall have
the meaning set forth in Section 5.1of this Agreement.
“Event of Default” shall
have the meaning set forth in Section 6.1.
“Fees” shall mean,
collectively: (i) the following fees, each as defined in the
Limited Liability Agreement: (A) the property management fees; (B)
the acquisition fees; (C) the financing fees; (D) the disposition
fees; (E) the asset management fees; and (F) the construction
management fees; and (ii) any other fees payable to the Company
pursuant to the terms of the Limited Liability
Agreement.
“Fund” shall mean the
entity identified as the “Fund” the opening paragraph
of this Agreement.
“Improvements” shall mean
any and all improvements, renovations, and expansions constituting
a part of a Property, including any subsequent alterations,
additions or replacements, and all fixtures and non-moveable
equipment now or hereafter owned directly or indirectly by the
Fund.
“Law” or
“Laws”
shall mean any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order or other
requirement of any municipal, county, state, federal or other
government agency or authority having jurisdiction over one or more
of the Parties or the Properties in effect on the date of this
Agreement or at any time during the Term.
“Limited Liability
Agreement” shall mean the Limited Liability Agreement
of the Fund, a copy of which has been provided to
Manager.
“Parties” shall mean the
Company and Manager, and “Party” shall mean either
of them.
“Person” shall mean any
individual, corporation, limited liability company, trust or other
entity.
“Property” shall mean any
direct or indirect interest in real or personal property, or in
indebtedness secured thereby or made with respect thereto, in which
the Fund acquires an interest. “Properties” shall mean
all such interests.
“Service Contracts” shall
have the meaning set forth in Section 4.3.2.
“Term” shall have the
meaning set forth in Section 2.2.
“Terminate” or
“Termination” shall mean
termination of this Agreement in accordance with Section 2.2 or
Section 6 of this Agreement.
“Unavoidable Delays” shall
mean an act of God, fire, earthquake, flood, explosion, war,
insurrection, riot, violence, sabotage, inability to procure labor,
equipment, facilities, materials or supplies, strikes, walk-outs,
action of labor unions, condemnations, Laws, litigation involving a
Party, inability to obtain governmental permits or approvals, and
other matters not within the control of the Party in question
excluding, however, the lack of funds or financing.
Capitalized terms
used herein without definition shall have the meanings assigned to
them in the Limited Liability Agreement.
SECTION 2
ENGAGEMENT
AND TERM
2.1. Appointment.
The
Company hereby appoints Manager, and Manager hereby accepts the
appointment, to act as the asset manager of the Fund, and in
connection therewith to furnish (i) general management and
administrative services in respect of the Fund, (ii) advice and
investment services to the Fund with respect to the investment and
reinvestment of the assets of the Fund, (iii) management and
disposition services with respect to the Fund’s investments,
and (iv) all other services incident to the foregoing and necessary
or appropriate for management of the Fund.
2.2. Term. The term of this
Agreement shall commence on the Commencement Date and shall
continue until the earlier to occur of the sale of the last of the
Properties owned by the Fund and the final winding up of the Fund
after the sale of the last of its Properties. The word
“Term”
shall include any time period from the Commencement Date until the
effective date of Termination.
2.3. Authority.
Manager shall have
the authority set forth herein and shall have full authority to
take any action necessary or desirable to perform its duties and
services pursuant to this Agreement, subject to any limitations
imposed by Law or specifically set forth in this
Agreement.
2.4. Relationship.
In the
performance of its duties hereunder, Manager shall be an agent and
not an employee, partner, or joint venturer of the Fund for any
purpose whatsoever.
2.5. Other
Business Activities. So long as Manager
allocates among its clients all investment opportunities made
available to its clients, including the Fund, in a fair and
impartial manner, taking into account each client’s
individual investment goals and criteria, Manager or its Affiliates
may, even if such activities result in competition between Manager
or its Affiliates and the Fund or between the Fund and other
clients of Manager or its Affiliates, and notwithstanding the first
sentence of Section 4.1 of this Agreement, act and continue to act
either in a principal capacity or as an advisor for other Persons
(including other real estate investment funds), perform investment
or management or other services for any other Person (including
other real estate investment funds), conduct any other business
venture of any nature, make investments for its own account or the
accounts of any other Person, or have an ownership or other
interest in any other business ventures of any nature or
description in the vicinity of the Properties or any other
location, including, without limitation, business ventures
involving the development, ownership, operation, management and
leasing of real property which may be in competition with the
Properties.
2.6. Execution
of Documents. Subject to the
provisions of this Agreement, in performing its services for the
Fund in accordance with this Agreement, Manager, acting through its
duly appointed officers, agents, managers and members, shall have
the power and authority: (i) to execute and deliver, on behalf of
the Fund all documents, instruments, certificates and other
writings (including, without limitation, all deeds, leases,
purchase and sale agreements, options, trust agreements,
assignments, easements, pleadings, purchase money notes, mortgages
and other credit or security documents) necessary to exercise its
authority under this Agreement and (ii) to select and engage such
outside professionals and other third parties to provide services
to the Fund, or as may be necessary or advisable to enable Manager
to carry out its duties to the Fund hereunder, including, without
limitation, independent accountants, legal counsel, appraisers,
surveyors, engineers, environmental assessors, architects,
insurers, brokers, transfer agents, registrars, property managers,
developers, consultants, investment banks, financial advisors,
banks and other lenders and other service providers, the reasonable
costs and fees of which shall be paid in accordance with Section 5
hereof. Each document executed by Manager with respect to the Fund
or any Property or otherwise on behalf of the Fund shall state that
Manager is executing such document on behalf of the Fund, and
Manager is authorized to seek to have each such document provide
that Manager is acting solely as agent of the Fund and shall have
no liability whatsoever under the document.
SECTION 3
OBLIGATIONS
OF THE FUND
Manager
is authorized to execute all day-to-day financial transactions on
behalf of the Fund. Specifically, Manager is authorized to pay out
of the funds of the Fund the Compensation and all of the costs and
expenses incurred on behalf of the Fund attributable to the
discharge of Manager’s duties hereunder (including, without
limitation, all costs and expenses incurred in connection with any
acquisition, financing or disposition transaction pursued on behalf
of the Fund whether or not consummated), including any xxxxxxx
money or good faith deposits required to be made in connection with
any acquisition and the fees and expenses of all third-party
consultants (including, without limitation, legal counsel,
accountants, appraisers, environmental specialists, engineers and
architects). Manager shall maintain detailed records of all such
payments and reimbursements with appropriate cash and disbursement
controls. If for any reason the Fund does not have sufficient funds
available to enable Manager to perform each of the duties and
responsibilities set forth herein, Manager shall notify the Fund of
such insufficiency and request that the Fund provide Manager such
sums as are necessary in order to enable Manager to perform its
duties and responsibilities under this Agreement. Should the Fund
fail to fund such amounts within ten days of receipt of
Manager’s notice, Manager shall be released from its
responsibilities hereunder for which Manager has not been provided
sufficient funds. Under no circumstances shall Manager be obligated
to incur any expenses of the Fund with Manager’s own funds in
order to discharge its duties and responsibilities
hereunder.
SECTION 4
4.1. General Standard.
In performing
services pursuant to this Agreement, Manager shall act in a manner
it believes in good faith to be in the best interests of the Fund
and with the care an ordinarily prudent institutional real estate
advisor in a like position would exercise under similar
circumstances. Manager shall not take any actions on behalf of the
Fund that would conflict with or violate any Law of any
governmental authority or agency having jurisdiction over the Fund
or any Property. Manager shall receive the Compensation described
in Section 5 as remuneration for the duties and services of Manager
outlined in this Section 4.
4.2. Acquisition
Services. Manager shall
consider, investigate and select real estate and real estate
related investment opportunities that are determined by Manager in
its reasonable business judgment to be in the best interest of the
Fund, and, in connection therewith, Manager will perform, at the
expense of the Fund, customary financial, market, legal and
physical due diligence investigations with respect to each
prospective investment and determine the need for or advisability
of financing. In addition, Manager shall prepare, negotiate and
execute on the Fund’s behalf all documents and agreements
necessary for the acquisition of Properties. In connection with the
performance of such analysis and diligence and at the expense of
the Fund, Manager will, to the extent Manager deems necessary and
appropriate, engage legal counsel and third-party experts and
consultants to, among other things, review the physical components
of any Improvements that constitute a part of a prospective
investment and other aspects of any proposed investment, including,
without limitation, environmental specialists, market consultants,
appraisers, engineers, tax certiorari specialists, construction
consultants, architects, mortgage brokers and accountants.
Following the consummation of any investment, Manager shall
maintain in the Fund’s records copies of all material
documentation evidencing such investment.
4.3. Asset
Management and Related Services. Manager shall
provide the following asset management and related services with
respect to the Properties and the Fund’s other
assets:
4.3.1. Rental
of Properties. Manager shall
supervise all leasing and occupancy matters with respect to the
Properties, subject to any leasing restrictions or limitations
included in any loan document, restrictive covenant, or other
instrument or document affecting any Property of which Manager is
aware. Manager shall have the authority to cause the Fund to enter
into all such leases (or any modification, renewal, extension
and/or termination to or of any existing lease).
4.3.2. Service Contracts.
Manager shall
select, arrange for, monitor and replace third-party managing and
leasing agents and independent contractors with respect to each
Property as it deems necessary or desirable to provide for the
development, leasing, and operation of each Property pursuant to
contracts (“Service
Contracts”) containing such terms as Manager shall
deem appropriate and necessary. Subject to the provisions of
Section 4.6 hereof, Manager, on behalf of the Fund, may enter into
Service Contracts with one or more of its Affiliates. Any fees paid
to an Affiliate of Manager will not exceed then-current market
rates, unless approved by the Fund. Manager shall monitor the
performance of all work done under all Service Contracts and shall
require compliance of all service-providers with the material terms
and conditions of their respective Service Contracts. The Fund
acknowledges and agrees that Manager shall not be responsible for
the performance of any such third-party managing agents,
independent contractors, vendors, or other Persons providing
services, work, or supplies or other property to the Fund and shall
have no liability for any loss, damage or claim suffered or
incurred by the Fund as a result of the actions or omissions of
said third-party managing agents, independent contractors, vendors,
or other Persons if Manager has acted as required by this
Agreement, and specifically Section 4.1 hereof.
4.3.3. Development,
Renovation and Redevelopment Work. Manager shall
review and monitor the performance and completion of any
development and construction of new Improvements on any of the
Properties or any alteration, renovation, expansion, remodeling or
redevelopment work to be conducted with respect to any of
Improvements on the Properties. In connection with any such work,
Manager shall select, arrange for, monitor and replace third-party
contractors (including, without limitation, general contractors to
supervise the performance of such work) as necessary and
appropriate to conduct any such work pursuant to contracts
containing such terms as Manager shall approve. Subject to the
provisions of Section 4.6 hereof, Manager, on behalf of the Fund,
may engage one or more of its Affiliates to perform such work. Any
fees paid to an Affiliate of Manager will not exceed then-current
market rates, unless approved by the Fund. Manager shall monitor
the performance of all work done under all such contracts and shall
require compliance of all contractors with the material terms and
conditions of their respective contracts and all Laws of any
federal, state, county or municipal authorities applicable to such
work.
4.3.4. Procurement
of Insurance. Manager shall
obtain and maintain public liability and extended coverage casualty
insurance from reputable, independent insurance companies in
amounts, types and risks to be covered selected by
Manager.
4.3.5. Collection
of Rent and Other Sums. Manager shall
supervise the collection by the third-party or Affiliate managing
agents of all fixed rent, additional rent and other sums payable by
tenants of the Properties or portions thereof, and review the
accounts of the third-party or Affiliate managing agents in respect
of all items of income and expense of the Properties. Manager shall
arrange for the deposit of all such income not required by the
third-party or Affiliate managing agent to pay recurring or
budgeted expenses to be deposited in the bank account established
by Manager and described in Subsection 4.3.6. Manager shall use
diligent efforts to insure that all necessary steps are taken with
respect to the enforcement on behalf of the Fund of any and all
rights and remedies of the Fund under the leases, including, but
not limited to, the giving of all notices, whether of default or of
intention to end the term of a lease or otherwise, which in the
judgment of Manager are desirable or proper for the protection of
the interests of the Fund.
4.3.6. Cash
Management and Investments. Manager shall
establish, maintain and administer a bank account or accounts in
the name of the Fund at banks to be selected by Manager, on which
the officers of Manager shall be authorized signatories. Manager
shall be responsible for short-term cash management and investment
of funds generated by the Fund’s assets (including, without
limitation, the Properties) on a short term basis.
4.3.7. Tax
Matters. Manager shall cause
the timely preparation and filing of all federal, state and local
income tax, real estate tax and information returns for the Fund
and payment of any taxes thereunder due on behalf of the Fund and,
to the extent Manager deems to be appropriate, shall liaise with
tax consultants and legal counsel regarding all tax planning and
structuring matters for the Fund. Manager shall perform all
administrative work in paying taxes owed, and, where appropriate,
seeking refunds of taxes paid.
4.3.8. Financial
Statements and Reports. Manager will
prepare and maintain (or cause to be prepared and maintained) books
and records for each Property. Manager will arrange for the
financial statements of the Fund to be audited annually in
accordance with generally accepted accounting principles by
independent public accountants of nationally recognized standing.
Manager shall also prepare and file (or cause to be prepared and
filed) any reports on behalf of the Fund as required by Regulation
A promulgated under the Securities Act of 1933, as amended
(“Reg
A”).
4.4. Sale,
Financing or Refinancing.
4.4.1. Sales.
Manager will
periodically review the Fund’s investments to consider
continued ownership or disposition based on each Property’s
market valuation, capital needs and prospects for future
appreciation. With respect to any services relating to the
marketing and brokering of a sale of the Fund’s investment in
a Property or entity, Manager may engage third parties or one of
its Affiliates to perform such services. Any fees paid to an
Affiliate of Manager will not exceed then-current market rates,
unless approved by the Fund; and
4.4.2. Financing
or Refinancing. Manager may engage third parties or one of
its Affiliates to provide, for a fee, financing or refinancing
services, including the arrangement of credit facilities and
property specific debt and mortgage brokerage services, for the
Fund, any assets of the Fund or any entities in which the Fund
invests. Any fees paid to an Affiliate of Manager will not exceed
then-current market rates, unless approved by the
Fund.
4.5
Management of
Administrative Matters. Manager shall provide the following
administrative management services to the Fund
4.5.1. Operations.
Take appropriate
actions to manage the Fund’s operations and assets and
perform the day-to-day administrative functions of the
Fund;
4.5.2. Legal
Requirements. In coordination
with legal counsel, take all steps necessary to perfect and
maintain the status of the Fund as a legal entity under the Laws of
such entity’s jurisdiction of organization and to ensure
compliance with all legal requirements pertaining to governance
applicable to the Fund including, without limitation, the
requirements applicable to the Fund under Reg A.
4.5.3 Good
Standing. In coordination with legal counsel, take all steps
necessary to ensure compliance with any requirements for the
qualification of the Fund to conduct business under the Laws of any
states or jurisdictions in which the Fund engages in
business.
4.5.4 Records.
Manager shall
maintain a complete and accurate set of files, books and records of
all business activities and operations conducted by Manager in
connection with Manager’s performance under this Agreement.
All such books and records shall be open to inspection by the
authorized representatives of the Fund or their designees at the
office of Manager during normal business hours at all times during
the Term and for a period of three years following the
Termination.
4.6. Affiliate Contracts and
Transactions. Manager shall be authorized to cause the Fund
to enter into contracts, agreements and other arrangements, for the
furnishing to the Properties and the Fund of any goods or services,
with Manager and with any Affiliate of Manager, provided such
contract, agreement, or other arrangement is on terms and
conditions no less favorable to the Fund than the terms and
conditions under which similarly qualified third-party Persons are
performing similar services in the same geographic
area.
SECTION 5
5.1. Compensation.
Manager shall be
entitled to be paid the Fees that are payable to the Company in
accordance with and as and when required under Section 4.02 of the
Limited Liability Agreement (the “Compensation”). The Fees
include:
5.1.1. Annual
property management fee of up to four percent (4.0%) of the monthly
gross income generated from the Properties, paid monthly, in
arrears;
5.1.2. Acquisition
fee equal to up to one percent (1.0%) of the purchase price of any
Property purchased by the Fund;
5.1.3. Financing
fee equal to up to one half percent (0.5%) of the principal amount
of debt used to finance the Fund’s acquisition of
Properties;
5.1.4. Disposition
fee of up to one percent (1.0%) of the gross sales price of a
Property sold by the Fund;
5.1.5. Annual
asset management fee of up to one and one half percent (1.5%) of
the total capital raised by the Fund in any bond offering, paid
quarterly, in advance; and
5.1.6. Construction
management fee equal to five percent (5.0%) of the aggregate cost
of any construction, renovation, improvements, or similar costs
incurred on the Properties.
5.2. Reimbursement
of Expenses. Manager will be
entitled to reimbursement of third-party out-of-pocket expenses and
certain other costs incurred by Manager on behalf of the Fund or in
connection with the discharge of the Manager’s duties to the
Fund, including, without limitation, expenses relating to the
formation, operation, and any future modification of the Fund (but
excluding any placement agent fees) and transactional expenses
relating to specific investments, including organizational expenses
of asset-level entities and pursuit costs associated with potential
investment transactions, whether those transactions are consummated
or not.
SECTION 6
6.1. Event
of Default. Each of the following shall constitute an
“Event of
Default”:
6.1.1. if
Manager or any of its directors, officers or employees shall be
guilty of gross negligence, willful misconduct or fraud in
connection with the services provided herein; or
6.1.2. if
Manager shall file a voluntary bankruptcy or consent to the
appointment of a trustee over its assets, or shall make a general
assignment for the benefit of creditors or if an involuntary
bankruptcy case shall be commenced against Manager or if a petition
is filed seeking the appointment of a trustee over its assets and
such shall remain undismissed and unstayed for a period of sixty
(60) days; or
6.1.3. if
there shall be a dissolution or termination of the corporate
existence of Manager by merger, consolidation or otherwise;
or
6.1.4. if
Manager shall fail to comply with any provision of this Agreement
and such default shall continue for thirty (30) days after notice
of such default is given by the Company to Manager; provided, however, that if such
default cannot reasonably be cured within such thirty (30) day
period, Manager shall have an additional period of thirty (30) days
after the initial thirty (30) day period [for a total of sixty (60)
days] if: (A) within the original thirty (30) day period Manager
has commenced such cure; and (B) Manager continues during the
subsequent thirty (30) day period to diligently pursue a cure of
such default.
6.2. Termination
By Agreement. This Agreement may
be terminated at any time by the mutual written agreement of the
Fund and Manager.
6.3. The
Fund’s Right to Terminate. In accordance with
Section 2.2, the Fund shall have the right to Terminate this
Agreement upon a sale or other disposition of all the Properties by
the Fund.
6.4. Manager’s
Right to Terminate. Manager may
Terminate this Agreement (i) upon an Event of Default by the Fund,
or (ii) for any reason effective upon 120 days’ prior written
notice of Termination to the Fund.
6.5. Duties
Upon Termination. On the effective
date of a Termination, Manager shall deliver to the Fund promptly
any and all of the Fund’s funds held by Manager and shall
prepare and deliver to the Fund a full accounting showing all
payments collected for the Fund’s account, all expenses paid
on the Fund’s account, and a statement of all funds held by
it on the Fund’s account covering the period following the
date of the last accounting furnished to the Fund. Manager shall
also deliver to the Fund any funds received by Manager after the
date of Termination to which the Fund is entitled. All materials,
supplies, keys, deeds, leases, contracts, other instruments and
documents, insurance policies, plans, specifications, promotional
materials and such other accounting papers and records as pertain
to this Agreement shall be delivered to the Fund upon or within a
reasonable period of time after the effective date of a
Termination. No further services shall be performed by Manager
under this Agreement after the effective date of a Termination,
provided that, in the event the Termination is as a result of
Manager’s exercise of its right to terminate under Section
6.4, Manager shall, at the Fund’s request and for a period of
up to 90 days after such Termination, cooperate with the Fund and
provide such services as are reasonably necessary to accomplish an
orderly transfer of the management of the Fund to the Person
designated by the Fund. Upon the effective date of a Termination,
the Fund shall pay to Manager any Compensation owed to Manager
hereunder as of such date.
6.6. Remedies.
If an Event of
Default occurs with respect to either Party under this Agreement,
the other Party may exercise any and all remedies available at law
or in equity for breach of contract, unless and to the extent
expressly limited herein, whether or not such Party elects to
Terminate this Agreement on account of the Event of
Default.
6.7. Survival.
Upon Termination
both Parties shall remain liable for all obligations accrued and
not fully performed under this Agreement during the Term, and the
obligations and liabilities set forth in Sections 5, 6.6, and 7
shall survive any Termination of this Agreement whether or not such
obligations occurred during the Term.
SECTION 7
INDEMNIFICATION
7.1. Indemnification
by the Company. The Company shall
indemnify and hold harmless Manager, its subsidiaries and their
respective directors and officers (each, a “Manager Indemnitee” and
collectively, “Manager Indemnitees”)
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, proceedings,
investigations (internal or otherwise), costs, expenses, and
disbursements of any kind or nature whatsoever (including, without
limitation, all costs and expenses of defense, appeal, and
settlement of any and all suits, actions and proceedings involving
any Manager Indemnitee and all costs of investigation (internal or
otherwise) in connection therewith) that may be imposed on,
incurred by, or asserted against any such Manager Indemnitee as a
result of claims or actions by third parties in any way relating to
or arising out of or in connection with, or alleged to relate to or
arise out of or in connection with any Property, other than matters
for which Manager is obligated to indemnify the Company under
Section 7.2.
7.2. Indemnification
by Manager. To the extent
permitted by Law:
(a) Manager shall
indemnify and hold harmless the Company, its subsidiaries and their
respective directors and officers (each, a “Fund Indemnitee” and
collectively, “Fund
Indemnitees”) from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, proceedings, investigations (internal or
otherwise), costs, expenses, and disbursements of any kind or
nature whatsoever (including, without limitation, all costs and
expenses of defense, appeal, and settlement of any and all suits,
actions and proceedings involving any Fund Indemnitee and all costs
of investigation (internal or otherwise) in connection therewith)
that may be imposed on, incurred by, or asserted against any such
Fund Indemnitee as a result of claims or actions by third parties
in any way relating to or arising out of or in connection with, or
alleged to relate to or arise out of or in connection with
Manager’s gross negligence or willful misconduct in
connection with its performance under this Agreement.
7.3. Waiver
of Subrogation. Whenever (i) any loss, cost, damage or
expense resulting from fire, explosion or any other casualty or
occurrence is incurred by either of the parties to this Agreement,
or anyone claiming by, through, or under it in connection with a
Property, and (ii) such party is then covered in whole or in part
by insurance with respect to such loss, cost, damage or expense or
is required under this Agreement to be so insured, then the party
so insured (or so required) hereby releases the other party from
any liability said other party may have on account of such loss,
cost, damage or expense to the extent of any amount recovered by
reason of such insurance (or which cost have been recovered had
such insurance been carried as so required) and waives any right of
subrogation which might otherwise exist in or accrue to any person
on account thereof. The insurance which each party is required
under this Agreement to maintain shall contain an endorsement
waiving the insurer's right of subrogation against the other party,
and each party represents and warrants to the other party as of the
date hereof that the insurance which each party is required under
this Agreement to maintain presently contains an endorsement
whereby the insurer waives subrogation rights.
SECTION 8
NO
WARRANTY AS TO VALUE OR PROFITABILITY
Notwithstanding any
provision of this Agreement to the contrary, Manager makes no
representation or warranty as to the performance of any Property or
that the Fund or any investment in any Property or Person
recommended or managed by Manager will be profitable or will not
lose value.
SECTION 9
REPRESENTATIONS AND WARRANTIES
9.1. Manager
Representations and Warranties.
9.1.1. Manager
hereby represents and warrants to the Company as follows:Manager is
duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, has the limited liability company
power and authority and the legal right to own and operate its
assets, to lease any property it may operate as lessee and to
conduct the business in which it is now engaged and is duly
qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership or lease of property
or the conduct of its business requires such qualification, except
for failures to be so qualified, authorized or licensed that could
not in the aggregate have a material adverse effect on the business
operations, assets or financial condition of Manager.
9.1.2. Manager
has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and all obligations required
hereunder and has taken all necessary corporate action to authorize
this Agreement on the terms and conditions hereof and the
execution, delivery and performance of this Agreement and all
obligations required hereunder. No consent of any other Person and
no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with,
any governmental authority is required by Manager in connection
with this Agreement or the execution, delivery, performance,
validity or enforceability of this Agreement and all obligations
required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a
duly authorized officer or manager of Manager, and this Agreement
constitutes, and each instrument or document required hereunder
when executed and delivered hereunder will constitute, the legally
valid and binding obligation of Manager enforceable against Manager
in accordance with its terms.
9.1.3. The
execution, delivery and performance of this Agreement and the
documents or instruments required hereunder will not violate any
provision of any Law binding on Manager, or any order, judgment,
award or decree of any court, arbitrator or governmental authority
binding on Manager, or the governing documents of, or any
securities issued by Manager or of any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which
Manager is a party or by which Manager or any of its assets may be
bound, the violation of which would have a material adverse effect
on the business operations, assets or financial condition of
Manager, and will not result in, or require, the creation or
imposition of any lien or any of its property, assets or revenues
pursuant to the provisions of any such mortgage, indenture, lease,
contract or other agreement, instrument or
undertaking.
9.2. Company
Representations and Warranties.
9.2.1. The
Company hereby represents and warrants to the Manager as
follows:
9.2.1. The
Company is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, has the limited liability
company power and authority and the legal right to own and operate
its assets, to lease any property it may operate as lessee and to
conduct the business in which it is now engaged and is duly
qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership or lease of property
or the conduct of its business requires such qualification, except
for failures to be so qualified, authorized or licensed that could
not in the aggregate have a material adverse effect on the business
operations, assets or financial condition of the
Company.
9.2.2. The
Company has the corporate power and authority and the legal right
to make, deliver and perform this Agreement and all obligations
required hereunder and has taken all necessary corporate action to
authorize this Agreement on the terms and conditions hereof and the
execution, delivery and performance of this Agreement and all
obligations required hereunder. No consent of any other Person and
no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with,
any governmental authority is required by the Company in connection
with this Agreement or the execution, delivery, performance,
validity or enforceability of this Agreement and all obligations
required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a
duly authorized officer or manager of the Company, and this
Agreement constitutes, and each instrument or document required
hereunder when executed and delivered hereunder will constitute,
the legally valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
9.2.3. The
execution, delivery and performance of this Agreement and the
documents or instruments required hereunder will not violate any
provision of any Law binding on the Company, or any order,
judgment, award or decree of any court, arbitrator or governmental
authority binding on the Company, or the governing documents of, or
any securities issued by the Company or of any mortgage, indenture,
lease, contract or other agreement, instrument or undertaking to
which the Company is a party or by which the Company or any of its
assets may be bound, the violation of which would have a material
adverse effect on the business operations, assets or financial
condition of the Company, and will not result in, or require, the
creation or imposition of any lien or any of its property, assets
or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or
undertaking.
SECTION 10
MISCELLANEOUS
10.1. Notices.
Any notice,
payment, demand or communication required or permitted to be given
pursuant to any provision of this Agreement shall be in writing and
shall be (i) delivered personally, (ii) sent by postage prepaid,
registered mail (airmail internationally), (iii) transmitted by
telecopy, or (iv) delivered by nationally recognized overnight
courier, addressed as follows, or to such other address as such
Person may from time to time specify by notice to the other
Party:
THE
FUND:
Trilogy Multifamily
Income & Growth Holdings I, LLC
000 X.
Xxxx Xxxxxx
Xxxxx
000
Xxxxxxx, XX
00000
Attn:
Xxxx Xxxxxx
Telecopier: (000)
000-0000
THE
COMPANY:
Trilogy Multifamily
Income & Growth Holdings I Manager, LLC
000 X.
Xxxx Xxxxxx
Xxxxx
000
Xxxxxxx, XX
00000
Attn:
Xxxx Xxxxxx
Telecopier: (000)
000-0000
MANAGER:
Trilogy Real Estate
Group, LLC
000 X.
Xxxx Xxxxxx
Xxxxx
000
Xxxxxxx, XX
00000
Attn:
K. Xxxxxxx Xxxxxxx
Telecopier: (000)
000-0000
Any
such notice, payment, demand or communication shall be deemed to be
delivered, given, and received for all purposes hereof (x) on the
date of receipt if delivered personally or by courier, (y) five
days after posting if transmitted by mail, or (z) the date of
transmission by telecopy, provided that the Person to whom the
telecopy was sent acknowledges that such telecopy was received by
such Person in legible form, or that such Person responds to the
telecopy without indicating any part of it was received in
illegible form, whichever shall first occur.
10.2. Estoppel
Letters. Upon request of the
other Party from time to time by notice, each Party shall furnish
promptly to the other Party a written statement of the status of
any matter pertaining to this Agreement to the best knowledge and
belief of the Party making such statement, including, without
limitation, whether an Event of Default exists under this
Agreement. The written statement shall be sent by notice within ten
days after the notice requesting it.
10.3. Assignment. Neither Party shall
assign its rights under this Agreement without the approval of the
other Party.
10.4. Successors
and Assigns. Subject to the
provisions of Section 10.3, this Agreement shall be binding upon
the Parties and their respective successors and permitted
assigns.
10.5. Entire
Agreement. This Agreement
constitutes the entire agreement of Parties with respect to the
subject matter hereof (except to the extent certain provisions of
the Limited Liability Agreement are referenced or incorporated
herein). There are no further agreements or understandings, written
or oral, in effect between the Parties with respect to the subject
matter hereof.
10.6. Amendments
in Writing. All amendments of
or modifications to this Agreement must be in writing and signed by
all Parties.
10.7. No
Waiver. The failure of
either Party to insist upon the strict performance of any covenant,
agreement, provision, or condition of this Agreement shall not
constitute a waiver thereof.
10.8. Severability.
If any provision of
this Agreement or the application thereof to any Person or
circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provisions
to any other Person or circumstance shall not be affected thereby
and shall be enforced to the greatest extent permitted by
Law.
10.9. Interpretation.
All
personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural; and the plural
shall include the singular. Titles of sections in this Agreement
are for convenience only and neither limit nor amplify the
provisions of this Agreement. All references in this Agreement to
sections, subsections or paragraphs shall refer to sections,
subsections and paragraphs of this Agreement, unless specific
reference is made to the sections, or other subdivisions of another
document or instrument. This Agreement shall not be interpreted in
favor of either Party by virtue of said Party not having prepared
this Agreement.
10.10. Governing
Law. The Laws of the
State of Illinois shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and
duties of the Parties hereunder.
10.11. No
Third Party Beneficiary. No Person other
than the Fund and Manager is or shall be entitled to bring any
action to enforce any provision of this Agreement. The provisions
of this Agreement are solely for the benefit of and shall be
enforceable only by the Fund and Manager and their respective
successors and assigns as permitted hereunder
10.12. Unavoidable
Delays. Each party shall be
excused from performing its obligations under this Agreement for so
long as, and to the extent that, performance is prevented or
delayed by Unavoidable Delays.
10.13. Time
of the Essence. Time is of the
essence of this Agreement.
10.14. Computing
Time Periods. If any time period
provided for in this Agreement ends on a day other than a Business
Day, the time period shall be extended to the next Business
Day.
10.15. Counterparts.
This
Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and together shall
constitute one and the same instrument.
[Signatures Appear on the Following Page]
IN
WITNESS WHEREOF, the Parties have executed this Management and
Advisory Agreement effective as of the Commencement
Date.
MANAGER:
TRILOGY REAL ESTATE GROUP,
LLC,
a
Delaware limited liability company
By:
TREG Manager, LLC,
a Delaware limited liability company, its Manager
By:/s/ Xxxx
Gehani___________________ Name: Xxxx
Xxxxxx
Title:
Manager
COMPANY:
TRILOGY MULTIFAMILY INCOME & GROWTH
HOLDINGS I MANAGER, LLC, a Delaware limited liability
company
By:
Multifamily Income
& Growth Partners, LLC, a Delaware limited liability company,
its Manager
By:
TREG Manager, LLC,
a Delaware limited liability company, its Manager
By:/s/ Xxxx
Gehani_______
Name:
Xxxx Xxxxxx
Title:
Manager
