EXHIBIT 10.3
MASTER MANAGEMENT AGREEMENT
This Master Management Agreement (this "Agreement") is entered into as of
the__ day of ______, 2003, by and between Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation (the "Company"), and Inland Western
Management Corp., a Delaware corporation (the "Manager").
WITNESSETH
WHEREAS, the Company is currently qualified as a "real estate investment
trust" (a "REIT") as defined in Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and is currently qualified to make
investments of the type permitted to be made by qualified REITs under the Code
and not inconsistent with the Certificate of Formation of the Company, as
amended, and the Bylaws of the Company, as amended (such investments being
referred to herein collectively as the "Properties" and individually as a
"Property"); and,
WHEREAS, the Company desires to have the Manager manage Properties and the
Manager is willing to manage Properties, on the terms and conditions herein set
forth;
NOW THEREFORE, in consideration of the mutual covenants herein set forth,
the parties hereby agree as follows:
1. Effective as of ________, 2003, the Company hereby retains the Manager
to manage Properties located west of the Mississippi River of the United States,
(collectively, the "Territory"). The engagement of the Manager by the Company
for each Property shall be pursuant to the terms of a separate management
agreement in the form of Exhibit A attached hereto (the "Management Agreement").
This Agreement is not an exclusive management agreement and the Company may
engage other management companies to manage Properties with the Territory.
2. The Manager will manage Properties acquired by the Company in the
Territory according to the terms of the Management Agreement.
3. The initial term of the Management Agreement for each Property shall
commence on the date of acquisition of the Property by the Company and shall end
on December 31st of the year in which such acquisition occurred, with three
successive three year renewal periods occurring immediately thereafter.
4. The parties may mutually agree to vary the terms of the Management
Agreement for any or all of the Properties or to not enter into a written
Management Agreement for any Property.
5. From and after May ___, 2008, the Company shall have the right, but
not the obligation, to acquire the entire business, affairs, operations and
assets of the Manager (collectively, the "Manager's Business") in whatever form
agreed upon between the Company and the Manager (a "Business Combination"), as
set forth in writing between them ("Merger Agreement"). If the Company desires
to acquire the Manager's Business in a Business
Combination, the Company shall send a written notice to the Manager to that
effect ("Election Notice"). Any agreement with respect to a Business Combination
shall contain provisions providing for: (i) the termination of this Agreement
and all Management Agreements entered into pursuant hereto and the release or
waiver of all fees payable by the Company to the Manager under the Management
Agreements (except for the payment of fees due and payable under the Management
Agreements for services rendered by the Manager up to and until the consummation
of the Business Combination); and (ii) the issuance of a certain number of
shares of common stock of the Company as determined below (the "Shares") to be
issued to the Manager, or its stockholders, members or other equity holders, as
the case may be, in connection with the Business Combination. The Manager
represents to the Company that the Manager has obtained the consent of its board
of directors and its shareholders to a Business Combination with the Company and
that Manager will obtain similar consents from any future shareholders, members
or other equity holders of the Manager.
6. The number of Shares to be issued by the Company to the Manager or its
shareholders, members or other equity holders as the case may be, shall be
determined as follows: The net income of the Manager for the calendar month
immediately preceding the month in which the Merger Agreement is executed, as
determined by an independent audit conducted in accordance with generally
accepted auditing standards, shall be annualized (the "Annual Net Income"). The
Annual Net Income shall then be multiplied by ninety percent (90%) and then
divided by the "Funds from Operations per Weighted Average Share" of the
Company. "Funds from Operations per Weighted Average Share" shall be equal to
the annualized Funds from Operations, on the basis of four (4) times the Funds
from Operations for the fiscal quarter immediately preceding the month in which
the Merger Agreement is executed, per weighted average Share of the Company for
such quarter as stated in the quarterly report on Form 10-Q of the Company given
to its shareholders for such quarter. The resulting quotient shall constitute
the number of Shares to be issued by the Company to the Manager or its
shareholders, members or other equity holders as the case may be, with delivery
thereof and the closing of the Business Combination to occur within ninety (90)
days after the date the Election Notice is given to Manager. Any such
transaction will occur, if at all, only if the Board of Directors of the Company
obtains a fairness opinion from an investment banking or valuation firm to the
effect that the consideration to be paid for the Business Combination is fair,
from a financial point of view, to the Company.
7. The Manager shall pay for the cost of the net income audit to
determine Annual Net Income. The Company shall pay for the cost of the fairness
opinion.
8. This Agreement shall be binding on successors and permitted assigns of
the parties. The Company shall not take any action to terminate this Agreement
solely for the purpose of avoiding a Business Combination, such as in
anticipation of the listing of the Shares on a national stock exchange or their
inclusion in a national market system.
9. All notices, requests or demands to be given under this Agreement from
one party to the other, including without limitation the Election Notice
(collectively, "Notices"), shall be in writing and shall be given by personal
delivery, or by a nationally recognized overnight courier service for next
Business Day delivery (or Saturday delivery, if desired) at the other party's
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address set forth below. Notices given by personal delivery (i.e. by the sending
party or a messenger) shall be deemed given on the date of delivery. Notices
given by overnight courier service shall be deemed given upon deposit with the
overnight courier service. Receipt by a receptionist, or by any person in the
employ of such party, shall be deemed actual receipt by the party of Notices.
The term Business Day means any day other than Saturday, Sunday or any other day
on which banks are required or are authorized to be closed in Chicago, Illinois.
The parties' addresses are as follows:
THE COMPANY:
Inland Western Retail Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: President
THE MANAGER:
Inland Western Management Corp.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: President
A party's address for notice may be changed from time to time by notice
given to the other party in the manner herein provided for giving notice.
[SIGNATURES ON FOLLOWING PAGE.]
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WHEREFORE, the undersigned have executed this Agreement by their duly
authorized officers as of the date first above written.
THE COMPANY:
Inland Western Retail Real Estate Trust, Inc.
By:
------------------------------------------
Its President
THE MANAGER:
Inland Western Management Corp.
By:
------------------------------------------
Its Chief Executive Officer
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EXHIBIT A
FORM OF
MANAGEMENT AGREEMENT
IN CONSIDERATION of the mutual covenants and agreements herein contained,
Inland Western Retail Real Estate Trust, Inc., a Maryland corporation ("OWNER")
and Inland Western Property Management Corp., a Delaware corporation
("MANAGER"), agree as follows:
OWNER hereby employs the MANAGER exclusively to rent, lease, operate and
manage the property commonly known as and located in and legally described on
Exhibit "A" attached hereto and made a part hereof (the "Premises"), upon the
terms and conditions hereinafter set forth, for a term beginning on the ____ day
of __________, 20___ and ending on the ____ day of __________, 20____ and
thereafter for three successive three year renewal periods, with the first such
three year renewal period commencing on _____________ of 20___ and ending on
_______________ of 20___, unless on or before thirty (30) days prior to the date
last above mentioned or on or before thirty (30) 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 thirty (30) 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 the event this
Agreement is terminated for any reason prior to the expiration of its original
term or any renewal term, the OWNER shall indemnify, protect, defend, save and
hold the MANAGER and all of its shareholders, officers, directors, employees,
managers, successors and assigns (collectively, "Indemnified Parties") harmless
from and against
any and all claims, causes of action, demands, suits, proceedings, loss,
judgments, damage, awards, liens, fines, costs, attorney's fees and expenses, of
every kind and nature whatsoever (collectively, "Losses"), which may be imposed
on or incurred by the MANAGER by reason of the willful misconduct, gross
negligence and/or unlawful acts (such unlawfulness having been adjudicated by a
court of proper jurisdiction) of OWNER.
THE MANAGER AGREES:
To accept the management of the Premises, to the extent, for the period,
and upon the terms herein provided and agrees to furnish the services of its
organization for the rental, leasing, operation and management of the Premises,
and, without limiting the generality of the foregoing, the MANAGER agrees to be
responsible for those specific duties and functions set forth in Section 3
hereof. MANAGER shall be entitled at all times to manage the Premises in
accordance with the MANAGER'S standard operating policies and procedures, except
to the extent that any specific provisions contained herein are to the contrary,
in which case MANAGER shall manage the Premises consistent with such specific
provisions. MANAGER agrees to use its best efforts to maintain the highest
occupancy at the highest rents for each space comprising the Premises.
To render monthly reports for the Premises to the OWNER, to the attention
of the individual and address as directed by the OWNER from time to time, and to
remit to the OWNER the excess of Gross Income (as defined in Section 3.3 hereof)
over expenses paid per Section 3.4 hereof ("Net Proceeds") for each month on or
before the 15th day of the following month. MANAGER will remit the Net Proceeds
to the OWNER at the address as stated in Section 6.1 hereof. The reports to be
submitted shall consist of the MANAGER'S Commercial Income Report and Commercial
Budget Variance Report, (samples of which are attached as "Exhibit B") and such
other monthly, quarterly and annual reports as are customary in
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commercial property management relationships and as reasonably requested by
OWNER in writing from time to time.
In case the expenses paid per Section 3.4 hereof shall be in excess of the
Gross Income for any monthly period, MANAGER shall notify OWNER of same and
OWNER agrees to pay such excess immediately upon request from the MANAGER, but
nothing herein contained shall obligate the MANAGER to advance its own funds on
behalf of the OWNER. All advances by MANAGER on behalf of OWNER shall be paid to
MANAGER by OWNER within ten (10) days after request.
To prepare annualized budgets for operation of the Premises and submit same
to the OWNER for approval. Such budgets shall be for planning and informational
purposes only, and the MANAGER shall have no liability to the OWNER for any
failure to meet any such budget. However, MANAGER will use its best efforts to
operate the Premises within the approved budget. The parties acknowledge that
the first such annual budget has been prepared and approved for the year
commencing ____________, 20___ and ending on ____________, 20___.
Notwithstanding the period covered by the first annual budget, all subsequent
annual budgets shall cover the period from January 1st of each year through
December 31st of such year. The proposed annual budget for each calendar year
shall be submitted by MANAGER to the OWNER by December 1st of the year preceding
the year for which it applies, OWNER shall notify MANAGER within fifteen (15)
days as to whether OWNER has approved the proposed annual budget or not. If the
OWNER disapproves the proposed budget, the OWNER shall notify the MANAGER of
what, specifically, OWNER disapproves of, and the OWNER and MANAGER shall make
the necessary amendments to the annual budget. During the time OWNER and MANAGER
are preparing these amendments, MANAGER will continue to
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operate the Premises according to the last approved budget. The OWNER'S approval
of the annual budget shall constitute approval for the MANAGER to expend sums
for all budgeted expenditures, without the necessity to obtain additional
approval of the OWNER under any other expenditure limitations as set forth
elsewhere in this Agreement.
THE OWNER AGREES:
And does hereby give the MANAGER the following exclusive authority and
powers (all of which shall be exercised in the name of MANAGER, as MANAGER for
the OWNER) and the OWNER agrees to assume all expenses in connection therewith:
To advertise the Premises or any part thereof and to display signs thereon,
as permitted by law; and to rent the same; to pay all expenses of leasing the
Premises, 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 Premises; to cause references of prospective
tenants to be investigated, it being understood and agreed by the parties hereto
that the MANAGER does not guarantee the credit worthiness or collectibility of
accounts receivable from tenants, users or lessees; and to negotiate new leases
and renewals and cancellations of existing leases which shall be subject to the
MANAGER obtaining OWNER'S approval. The MANAGER may 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 need not account for such charges and/or commission to the OWNER;
to terminate tenancies and to sign and serve in the name of the OWNER of the
Premises such notices as are deemed necessary by the MANAGER; to institute and
prosecute actions to evict tenants and to recover possession of the Premises or
portions thereof; with the OWNER'S authorization, to xxx for in
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the name of the OWNER of the Premises 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 which MANAGER shall incur in connection with
the collecting of rent and other sums, or to recover possession of the Premises
or any portion thereof shall be deemed to be an operational expense of the
Premises. MANAGER and OWNER shall concur on the selection of the attorney to
handle such litigation.
To hire, supervise, discharge, and pay all labor required for the operation
and maintenance of the Premises 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 Premises, including personnel spending a portion of their
working hours (to be charged on a pro rata basis) at the Premises (all of whom
shall be deemed employees of the Premises, not of the MANAGER). All expenses of
such employment shall be deemed operational expenses of the Premises. To make or
cause to be made all ordinary repairs and replacements necessary to preserve the
Premises in its present condition and for the operating efficiency thereof and
all alterations required to comply with lease requirements, and to do decorating
on the Premises; to negotiate and enter into, as MANAGER of the OWNER of the
Premises, contracts for all items on budgets that have been approved by OWNER,
any emergency services or repairs for items not exceeding $5,000.00, appropriate
service agreements and labor agreements for normal operation of the Premises,
which have terms not to exceed three (3) 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
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services in collection with the leases and service agreements relating to the
Premises, and other services or such of them as the MANAGER may consider
appropriate; and to purchase supplies and pay all bills. MANAGER shall use its
best efforts to obtain the foregoing services and utilities for the Premises at
the most economical costs and terms available to MANAGER. The OWNER hereby
appoints MANAGER as OWNER'S authorized MANAGER for the purpose of executing, as
managing MANAGER for said OWNER, all such contracts. In addition, the OWNER
agrees to specifically assume in writing all obligations under all such
contracts so entered into by the MANAGER, on behalf of the OWNER of the
Premises, upon the termination of this Agreement and the OWNER shall indemnify,
protect, save, defend and hold the MANAGER and all of its shareholders,
officers, directors, employees, MANAGERs, successors and assigns harmless from
and against any and all claims, causes of action, demands, suits, proceedings,
loss, judgments, damage, awards, liens, fines, costs, attorney's fees and
expenses, of every kind and nature whatsoever, resulting from, arising out of or
in any way related to such contracts and which relate to or concern matters
occurring after termination of this Agreement, but excluding matters arising out
of MANAGER's willful misconduct, gross negligence and/or unlawful acts. MANAGER
shall secure the approval of, and execution of appropriate contracts by, the
OWNER for any non-budgeted and non-emergency/ contingency capital items,
alterations or other expenditures in excess of $5,000.00 for anyone item,
securing for each item at least three (3) 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 subsidiaries and affiliates of the MANAGER, provided that
contract rates and prices are competitive with other available sources. The
MANAGER may at any time and
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from time to time request and receive the prior written authorization of the
OWNER of the Premises of anyone or more purchases or other expenditures,
notwithstanding that the MANAGER may otherwise be authorized hereunder to make
such purchases or expenditures.
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 (all such items being referred
to herein as "Gross Income") and give receipts therefore and to deposit all such
Gross Income collected hereunder in the MANAGER'S custodial account which the
MANAGER will open and maintain, in a state or national bank of the MANAGER'S
choice and whose deposits are insured by the Federal Deposit Insurance
Corporation, exclusively for the Premises and any other properties owned by
OWNER (or any entity that is owned or controlled by the general partner of the
OWNER) and managed by MANAGER. OWNER agrees that MANAGER shall be authorized to
maintain a reasonable minimum balance (to be determined jointly from time to
time) in such account. MANAGER may endorse any and all checks received in
connection with the operation of the Premises and drawn to the order of the
OWNER and the OWNER shall, upon request, furnish the MANAGER'S depository with
an appropriate authorization for the MANAGER to make such endorsement.
To pay all expenses of the Premises from the Gross Income collected in
accordance with 3.3 above, from the MANAGER'S custodial account. It is
understood that the Gross Income will be used first to pay the compensation to
the MANAGER as contained in Paragraph 5 below, then operational expenses and
then any mortgage indebtedness, including real estate tax and insurance
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impounds, but only as directed by the OWNER in writing and only if sufficient
Gross Income is available for such payments.
Nothing in this Agreement shall be interpreted in such a manner as to
obligate the MANAGER to pay from Gross Income, any expenses incurred by OWNER
prior to the commencement of this Agreement, except to the extent the OWNER
advances additional funds to pay such expenses.
To collect and handle tenants' security deposits, including the right to
apply such security deposits to unpaid rent, and to comply, on behalf of the
OWNER of the Premises, with applicable state or local laws concerning security
deposits and interest thereon, if any.
The MANAGER shall not be required to advance any monies for the care or
management of the Premises, and the OWNER agrees to advance all monies necessary
therefor. If the MANAGER shall elect to advance any money in connection with the
Premises, the OWNER agrees to reimburse the MANAGER forthwith and hereby
authorizes the MANAGER to deduct such advances from any monies due the OWNER.
In connection with any insured losses or damages, to handle all steps
necessary regarding any such claim; provided that the MANAGER will not make any
adjustments or settlements in excess of $10,000.00 without the OWNER'S prior
written consent.
Notwithstanding anything to the contrary contained in this Agreement, 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 OWNER shall have no liability or
responsibility to any such Submanager for the payment of the
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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 the OWNER for
all loss, damage or claims incurred by OWNER as a result of the willful
misconduct, gross negligence and/or unlawful acts of the Submanager. OWNER
further acknowledges and agrees that MANAGER may assign this Agreement and all
of MANAGER's rights and obligations hereunder, to another management entity that
is then managing other property for OWNER ("Successor Manager"). OWNER
specifically grants MANAGER the authority to make such an assignment to a
Successor Manager.
THE OWNER FURTHER AGREES:
To indemnify, defend, protect, save and hold the MANAGER and all of its
shareholders, officers, directors, employees, agents, Submanagers, successors
and assigns (collectively, "Indemnified Parties") harmless from any and all
claims, causes of action, demands, suits, proceedings, loss, judgments, damage,
awards, liens, fines, costs, attorney's fees and expenses, of every kind and
nature whatsoever (collectively, "Losses") in connection with or in any way
related to the Premises and from liability for damage to the Premises 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 willful misconduct, gross negligence and/or unlawful acts (such
unlawfulness having been adjudicated by a court of proper jurisdiction) of
MANAGER or any of the other Indemnified Parties. OWNER agrees to procure and
carry at its own expense Public Liability Insurance, Fire and Extended Coverage
Insurance, Burglary and Theft Insurance, Rental Interruption Insurance, Flood
Insurance (if appropriate) and Boiler Insurance (if appropriate) naming the
OWNER and the MANAGER as insureds and adequate to
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protect their interests and in form, substance, and amounts reasonably
satisfactory to the MANAGER, and to furnish to the MANAGER certificates and
policies evidencing the existence of such insurance. The premiums for all such
insurance maintained by the OWNER shall be paid by either the OWNER directly or,
provided sufficient Gross Income is available, by the MANAGER from such Gross
Income. Unless the OWNER shall provide such insurance and furnish such
certificate and policy within ten (10) days from the date of this Agreement, the
MANAGER may, in its sole discretion, but shall not be obligated to, place said
insurance and charge the cost thereof to the account of the OWNER. All such
insurance policies shall provide that the MANAGER shall receive thirty (30)
days' written notice prior to cancellation of the policy. 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 willful
misconduct, gross negligence and/or unlawful acts (such unlawfulness having been
adjudicated by a court of proper jurisdiction).
OWNER hereby warrants and represents to MANAGER that to the best of OWNER'S
knowledge, neither the Premises, nor any part thereof, has previously been or is
presently being 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 there
over. Furthermore, OWNER agrees to indemnify, protect, defend, save and hold the
MANAGER and all of its shareholders, officers, directors, employees, agents,
successors and assigns harmless from any and all claims, causes of action,
demands, suits, proceedings, loss, judgments,
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damage, awards, liens, fines, costs, attorney's fees and expenses, of every kind
and nature whatsoever, 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
Premises.
To give adequate advance written notice to the MANAGER if the OWNER desires
that the MANAGER make payment, out of Gross Income, to the extent funds are
available after the payment of the MANAGER'S compensation as contained in
Paragraph 5 and all operational expenses, of mortgage indebtedness, general
taxes, special assessments, or fire, boiler or any other insurance premiums. In
no event shall the MANAGER be required to advance its own money in payment of
any such indebtedness, taxes, assessments or premiums.
THE OWNER AGREES TO PAY THE MANAGER, AS A MONTHLY MANAGEMENT FEE HEREUNDER,
an amount no greater than four and one half percent (4-1/2%) of Gross Income for
the month for which the payment is made, which shall be deducted monthly by the
MANAGER and retained by the MANAGER from Gross Income prior to payment to OWNER
of Net Proceeds. Such Management Fee shall be compensation for those services
specified herein. Any services beyond those specified herein, such as sales
brokerage, construction management, loan origination and servicing, property tax
reduction and risk management services, shall be performed by MANAGER and
compensated by OWNER only if the parties agree on the scope of such work and
provided that the compensation to be paid therefor will not exceed 90% of that
which would be paid to unrelated parties providing such services and provided
further that all such compensation must be approved by a majority of the
independent directors of OWNER. OWNER acknowledges and agrees that MANAGER may
payor assign all or any portion of its Management Fee to a Submanager as
described in section 3.9
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hereof.
MANAGER shall retain all administrative charges actually collected from
tenants in connection with annual common area maintenance reconciliations and
tenant chargebacks for same.
IT IS MUTUALLY AGREED THAT:
OWNER shall designate one (1) person to serve as OWNER'S Representative in
all dealings with MANAGER hereunder. Whenever the notification and reporting to
OWNER or the approval, consent or other action of OWNER is called for hereunder,
any such notification and reporting if sent to or specified in writing to the
OWNER'S Representative, and any such approval, consent or action if executed by
OWNER'S Representative, shall be binding on OWNER. The OWNER'S Representative
shall be:
Name Address
---- -------
Xxxxxxx X. Xxxxxx 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
The OWNER'S Representative may be changed at the discretion of the OWNER,
at any time and from time to time, and shall be effective upon MANAGER'S receipt
of written notice of the new OWNER' S Representative.
The OWNER expressly withholds from the MANAGER any power or authority to
make any structural changes in any building or to make any other major
alterations or additions in or to any such building or equipment therein, or to
incur any expense chargeable to the OWNER, other than expenses related to
exercising the express powers above vested in the MANAGER without the prior
written direction of the OWNER'S Representative, except such emergency repairs
as may be required to ensure the safety of persons or property or which are
immediately necessary for the preservation and safety of the Premises or the
safety of the tenants and occupants thereof or are required to avoid the
suspension of any necessary service to the
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Premises. The person identified above as the OWNER'S Representative (and any
designated successor or successors to such OWNER' S Representative) shall be the
OWNER'S exclusive representative for all purposes hereof, and the MANAGER shall
have the absolute right to rely upon all decisions, approvals and directions of
such person. Such representative shall have the right to designate a successor
representative by written notice to the MANAGER.
The MANAGER shall be responsible for notifying OWNER in the event it
receives notice that any building on the Premises 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 the
OWNER any complaints, warnings, notices or summonses received by it relating to
such matters. The OWNER represents that to the best of its knowledge the
Premises and such equipment comply with all such requirements and authorizes the
MANAGER to disclose the OWNER of the Premises to any such officials and agrees
to indemnify, protect, defend, save and hold the MANAGER and the other
Indemnified Parties harmless of and from any and all Losses which 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 building on the Premises or
any equipment therein or any act or failure to act by the OWNER with respect to
the Premises 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
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jurisdiction thereover, and the MANAGER, in its sole and absolute discretion,
considers that the action or position of the OWNER, with respect thereto may
result in damage or liability to the MANAGER, the MANAGER shall have the right
to cancel this Agreement at any time by written notice to the OWNER of its
election so to do, which cancellation shall be effective upon the service of
such notice. Such notice may be served personally or by registered mail, on or
to the person named to receive the MANAGER'S monthly statement at the address
designated for such person as provided in Paragraph 6.1 above, and if served by
mail shall be deemed to have been served when deposited in the mails. Such
cancellation shall not release the indemnities of the OWNER set forth in this
Agreement, including, but not limited to, those set forth in Paragraphs
1,3.2,4.1,4.2 and 6.3 above and shall not terminate any liability or obligation
of the OWNER to the MANAGER for any payment, reimbursement, or other sum of
money then due and payable to the MANAGER hereunder.
All personnel expenses, including but not limited to, wages, salaries,
insurance, fringe benefits, employment related taxes and other governmental
charges, shall be charges incurred in connection with the Premises for purposes
of Paragraph 3.4 hereof, to the extent such expenses are apportioned by the
MANAGER to services rendered for the benefit of the Premises. The number and
classification of employees serving the Premises shall be as determined by the
MANAGER to be appropriate for the proper operation of the Premises; provided
that the OWNER may request changes in the number and/or classifications of
employees, and the MANAGER shall make such changes unless in its judgment the
resulting level of operation and/or maintenance of the Premises will be
inadequate. The MANAGER shall honor any collective bargaining contract covering
employment at the Premises which is in effect upon the date of execution of this
Agreement; provided that the MANAGER shall not assume or
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otherwise become a party to such contract for any purpose whatsoever and all
personnel subject to such contract shall be considered the employees of the
Premises and not the MANAGER.
The OWNER shall payor reimburse the MANAGER for any sums of money due it
under this Agreement for services and advances prior to termination of this
Agreement. All provisions of this Agreement that require the OWNER to have
insured, or to protect, defend, save, hold and indemnify or to reimburse the
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 the MANAGER of the OWNER, such provisions shall apply as if this
Agreement were still in effect. The parties understand and agree that the
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 the MANAGER to pay bills previously incurred, the OWNER
will upon demand advance sufficient funds to the 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.
Nothing contained herein shall be construed as creating any rights in third
parties who are not the parties to this Agreement, nor shall anything contained
herein be construed to impose any liability upon OWNER or MANAGER for the
performance by the OWNER or MANAGER under any other agreement they have entered
into or may in the future enter into, without the express written consent of the
other having been obtained. Nothing contained in this Agreement shall be deemed
or construed to create a partnership or joint venture between OWNER and MANAGER
or to cause either party to be responsible in any way for the debts or
obligations of the other or any other party (but nothing contained herein shall
affect MANAGER'S
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responsibility to transmit payments for the account of OWNER as provided
herein), it being the intention of the parties that the only relationship
hereunder is that of MANAGER and principal.
Wherever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited or invalid under such law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. This Agreement, its validity,
performance and enforcement shall be construed in accordance with, and governed
by, the laws of the State in which the Premises are located.
This Agreement shall be binding upon the successors and assigns of the
MANAGER and the heirs, administrators, executors, successors, and assignees of
the OWNER. This Agreement contains the entire Agreement of the parties relating
to the subject matter hereof, and there are no understandings, representations
or undertakings by either party except as herein contained. This Agreement may
be modified solely by a written agreement executed by both parties hereto.
If any party hereto defaults under the terms or conditions of this
Agreement, the defaulting party shall pay the non-defaulting party's court costs
and attorney's fees incurred in the enforcement of any provision of this
Agreement.
The failure of either party to this Agreement to, in anyone or more
instances, insist upon the performance of any of the terms, covenants or
conditions of this Agreement, or to exercise any rights or privileges conferred
in this Agreement, shall not be construed as thereafter waiving any such terms,
covenants, conditions, rights or privileges, but the same shall continue in full
force and effect as if no such forbearance or waiver had occurred.
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This Agreement is deemed to have been drafted jointly by the parties, and
any uncertainty or ambiguity shall not be construed for or against either party
as an attribution of drafting to either party.
All notices given under this Agreement shall be sent by certified mail,
return receipt requested, sent by facsimile transmission, or hand delivered at:
FOR OWNER: FOR MANAGER:
Inland Western Retail Real Estate Trust, Inc. Inland Western Management Corp.
ATTN: Xxxxxxx X. Xxxxxx ATTN: Xxxxxx X. XxXxxxxxxx
0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000 Xxx Xxxxx, Xxxxxxxx 00000
Fax: #630/000-0000 Fax: #630/000-0000
IN WITNESS WHEREOF, the parties hereto have affixed or caused to be affixed
their respective signatures this _________________ day of ____________ , 20___.
MANAGER: OWNER:
INLAND WESTERN MANAGEMENT INLAND WESTERN RETAIL REAL
CORP., a Delaware corporation ESTATE TRUST, INC., a Maryland
corporation
By:
--------------------------------------
Its: By:
------------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx,
Vice President - Administration
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