EXHIBIT 10.12
PROPERTY AND ASSET MANAGEMENT AGREEMENT
This PROPERTY AND ASSET MANAGEMENT AGREEMENT (the "Agreement") is dated
as of this 15th day of October, 2003, between Behringer Harvard Minnesota
Center TIC I, LLC, a Delaware limited liability company ("Behringer") and
Behringer Harvard Minnesota Center TIC II, LLC, a Delaware limited liability
company (the "Company") (collectively, the "Tenants in Common"), and Behringer
Harvard TIC Management Services LP, a Texas limited partnership (the "Property
Manager").
The Tenants in Common own the commercial real estate located in
Bloomington, Minnesota commonly known as Minnesota Center and as more
particularly described in Exhibit "A" attached hereto and incorporated herein
(the "Project"). The Tenants in Common desire to engage the Property Manager to
supervise, manage, lease, operate, and maintain the Project. The Tenants in
Common have entered into a Tenants in Common Agreement (the "Tenants in Common
Agreement") concurrently herewith.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. COMMENCEMENT AND TERMINATION DATES; AUTHORITY OF TENANTS IN
COMMON.
1.1 COMMENCEMENT AND TERMINATION. The Property Manager's
duties and responsibilities under this Agreement shall begin on the date of this
Agreement and shall terminate on the earlier of (i) the sale of the Project or
any portion thereof, as to such portion of the Project sold only (other than any
sale of an undivided interest held by a Tenant in Common to a party that will
acquire such interest subject to the Tenants in Common Agreement and this
Agreement), (ii) termination or the failure to renew as provided in Section 10,
or (iii) December 31, 2020.
1.2 AUTHORITY OF THE TENANTS IN COMMON.
1.2.1 UNANIMOUS CONSENT OF THE TENANTS IN COMMON. The
consent of all of the Tenants in Common shall be required with respect to any
sale, exchange, lease, re-lease of all or a portion of the Project, any loans or
modifications of any loans secured by the Project, the approval of any property
management agreement or any extension, renewal or modification thereof. Whenever
in Tenants in Common Agreement, the consent or approval of the Tenants in Common
is required or otherwise requested, with respect to any (i) sale or exchange of
all or a portion of the Project or (ii) loan or modification of any loan secured
by the Project, the Tenants in Common shall have fifteen (15) days after the
date the request for such consent or approval is received pursuant to Section 12
to approve or disapprove of the matter. Whenever in the Tenants in Common
Agreement the consent or approval of the Tenants in Common is required or
otherwise requested, with respect to any modification or renewal of the any
property management agreement, the Tenants in Common shall have thirty (30) days
after the date the request for consent or approval is received pursuant to
Section 12 to the Tenants in Common for their approval or disapproval of the
matter. Whenever in the Tenants in Common Agreement the consent or approval of
the Tenants in Common is required or otherwise requested, with respect to any
lease or re-lease of all or a portion of the Project, the Tenants in Common
shall have five (5) days after the date the request for consent or approval is
received pursuant to Section 12 to the Tenants in Common for their approval or
disapproval of the matter. The Tenants in Common agree to use their best efforts
to respond to any request for consent or approval. If a Tenant in Common does
not disapprove of such matter within the specified response period described
above, the Tenant in Common shall be deemed to have approved the matter. By
execution hereof, the Tenants in Common confirm their approval of this Agreement
and that certain loan made (or to be made immediately after the execution of
this Agreement) by Greenwich Capital Financial Products, Inc. (together with its
successors and/or assigns, the "Lender") secured by, among other things, a
mortgage or deed of trust on the Project.
1.2.2 MAJORITY CONSENT OF THE TENANTS IN COMMON.
Whenever the approval or consent of the Tenants in Common is required with
respect to any items, other than those set forth in Section 1.2.1, the approval
or consent of the Tenants in Common holding more than 50% of the percentage
interest in the Project shall be required to approve such action. The Tenants in
Common shall have fifteen (15) days after the date the
request for such consent or approval is received pursuant to Section 12 to
approve or disapprove of any matter pursuant to this Section 1.2.2.
1.2.3 AUTHORITY OF PROPERTY MANAGER. Upon the approval
any item by the Tenants in Common pursuant to Sections 1.2.1 and 1.2.2 above,
the Property Manager shall have the power and authority to act on behalf of the
Tenants in Common with respect to such items.
2. PROPERTY MANAGER'S RESPONSIBILITIES.
2.1 STATUS OF THE PROPERTY MANAGER. The Tenants in Common
and the Property Manager do not intend to form a joint venture, partnership or
similar relationship. Instead, the parties intend that the Property Manager
shall act solely in the capacity of an independent contractor for the Tenants in
Common. Nothing in this Agreement shall cause the Property Manager and the
Tenants in Common to be joint venturers or partners of each other, and neither
shall have the power to bind or obligate the other party by virtue of this
Agreement, except as expressly provided in this Agreement. Nothing in this
Agreement shall deprive or otherwise affect the right of either party to own,
invest in, manage, or operate, or to conduct business activities which compete
with the business of the Project.
2.2 MANAGEMENT. The Property Manager shall manage, operate
and maintain the Project in an efficient, economic, and satisfactory manner and
shall arrange the performance of everything reasonably necessary for the proper
operation of the Project for the tenants thereof, subject to (a) applicable
governmental requirements and (b) the terms and provisions of this Agreement. At
the expense of the Tenants in Common, the Property Manager shall keep the
Project clean and in good repair, shall order and supervise the completion of
such repairs as may be required and shall generally do and perform, or cause to
be done or performed, all things necessary, required or desirable for the proper
and efficient management, operation, and maintenance of the Project; provided
the Tenants in Common, in a manner reasonably satisfactory to the Property
Manager, make available to the Property Manager such sums as are reasonably
necessary to pay the costs thereof. In addition to the foregoing, Property
Manager shall have exclusive responsibility for interfacing and communicating
with the owner and holder of any deed of trust upon the Project, including,
without limitation, Greenwich Capital Financial Products, Inc. (the current
holder of the deed of trust on the Project) and its successors and assigns, and
shall (i) make all day to day business decisions customarily provided by a
property manager and (ii) perform all services customarily provided by a
property manager, with respect to interfacing with a lender, including, without
limitation, designating changes in address, receiving any and all notices
including, without limitation default notices on behalf of the Tenants in
Common, requesting waivers of loan document provisions and negotiating
conditions to any such requested waivers that might be granted by any such owner
and holder, depositing rents or other revenues in any lockbox account maintained
under such loan documents, receiving into an operating account to be maintained
by Property Manager for the benefit of the Tenants in Common all disbursements
made out of any such lockbox to the Tenants in Common as the borrower thereunder
for the payment of operating expenses of the Project, or otherwise to be made to
or to the account of the Tenants in Common as such borrower, requesting and
receiving any amounts out of any reserve accounts or escrow accounts maintained
by such lender on account of repairs, capital improvements, tenant improvements,
leasing commissions, real estate taxes and assessments and insurance proceeds or
otherwise. The Property Manager shall perform all services in a diligent and
professional manner.
2.3 EMPLOYEES: INDEPENDENT CONTRACTOR. The Property Manager
shall employ, directly or through third party contractors (e.g. employee leasing
company), at all times a sufficient number of capable employees to enable the
Property Manager to properly, adequately, safely and economically manage,
operate and maintain the Project. All matters pertaining to the supervision of
such employees shall be the responsibility of the Property Manager. All salaries
and benefits and positions of employees who perform work in connection with the
Project shall be consistent with the Budget (as defined in Section 2.5.1).
2.4 COMPLIANCE WITH LAWS, MORTGAGES AND OTHER MATTERS.
2.4.1 The Property Manager shall use reasonable
efforts to comply with any deed of trust, mortgage or other loan documents
affecting the Project and all governmental requirements, including Board of Fire
Underwriters or other similar body, relative to the performance of its duties
hereunder and cause the Project to comply with any deed of trust, mortgage or
other loan documents affecting the Project and all governmental
requirements, including Board of Fire Underwriters or other similar body.
Property Manager may implement such procedures with respect to the Project as
the Property Manager may deem advisable for the more efficient and economic
management and operation thereof. The Property Manager shall pay from the
Operating Account (defined in Section 6.1) expenses incurred to remedy
violations.
2.4.2 The Property Manager shall furnish to the
Tenants in Common, promptly after receipt, any notice of violation of any
governmental requirement or order issued by any governmental entity, any Board
of Fire Underwriters or other similar body against the Project, any notice of
default from the holder of any mortgage or deed of trust encumbering the Project
or any notice of termination or cancellation of any insurance policy.
2.5 BUDGETS AND OPERATING PLAN.
2.5.1 The Property Manager shall prepare and submit to
the Tenants in Common an initial capital and operating budget ("Budget") on a
monthly accrual basis for the promotion, operation, leasing, repair, maintenance
and improvement of the Project for the current calendar year. The Budget for the
initial calendar year is attached hereto as Exhibit "C" and is hereby approved
by each Tenant in Common. The Property Manager shall deliver each subsequent
Budget for each subsequent calendar year on or about December 15th of the
calendar year before the budget year, or as soon as possible thereafter. The
Budget shall be approved by the Tenants in Common as set forth in Section 1.2.2.
Each Tenant in Common shall be deemed to have approved the Budget unless the
Tenant in Common provides a written notice indicating the specific objection to
the specific Budget item within 15 days from receipt of the Budget as determined
pursuant to Section 12. The Tenants in Common agree to use their best efforts to
respond to any request to approve the Budget. In the event that the Tenants in
Common do not approve of the Budget, the Tenants in Common shall negotiate in
good faith with the Property Manager and the other Tenants in Common to obtain
an acceptable Budget. The Property Manager may proceed under the terms of the
proposed Budget for items that are not objected to and may take any action with
respect to items not approved for Emergency Expenditures (as defined in Section
2.5.2). In the event that the items that are objected to are operational
expenditures, as opposed to capital expenditures, the Property Manager shall be
entitled to operate the Project using the prior year's budget until the approval
is obtained. The Property Manager shall provide the Tenants in Common with such
information regarding the Budget as may be, from time to time, reasonably
requested by the Tenants in Common. The Property Manager may at any time submit
a revised Budget to the Tenants in Common for their approval pursuant to Section
1.2.2.
2.5.2 The Property Manager shall charge all expenses
to the proper account as specified in the Budget, provided that the Property
Manager may reallocate savings from one line item to other line items. The
Property Manager shall submit (subject to the same procedures as set forth in
Section 2.5.1) a revised Budget to the Tenants in Common before making any
expenditure not within the Budget unless the expenditure is (a) less than Fifty
Thousand Dollars ($50,000) or (b) is, in the Property Manager's reasonable
judgment, required to avoid personal injury, significant property damage, a
default under any loan encumbering the Project, a violation of applicable law or
the suspension of a service (collectively, "Emergency Expenditures").
2.5.3 During each calendar year, in the regular
quarterly reports sent to the Tenants in Common, the Property Manager shall
inform the Tenants in Common of any material increases in costs and expenses not
foreseen and not included in the Budget within a reasonable time after the
Property Manager learns of such changes.
2.5.4 Together with the submission of the Budget, the
Property Manager shall submit each year to the Tenants in Common for information
purposes only an operating plan for the general operation of the Project,
including a proposed list of improvements to the Project, general insurance
plan, marketing plan and plan for the general operation and maintenance of the
Project (the "Operating Plan"). The Property Manager may submit a revised
Operating Plan to the Tenants in Common at any time.
2.6 LEASING.
2.6.1 The Property Manager shall use commercially
reasonable efforts to obtain tenants for all leasable space in the Project and
to renew leases and rental agreements (collectively, "Leases"). The
Property Manager shall have the authority to negotiate new and renewal Leases on
behalf of the Tenants in Common and to execute and deliver on behalf of the
Tenants in Common any Leases that are approved by the Tenants in Common pursuant
to Section 1.2. In connection with its leasing efforts, the Property Manager may
advertise the Project for lease.
2.6.2 Notwithstanding anything to the contrary
contained herein, the Property Manager shall only provide customary services to
tenants of the Project and shall provide no other services to the tenants on
behalf of the Tenants in Common.
2.6.3 The Property Manager shall not, without the
prior written approval of the Tenants in Common, give free rental or discounts
or rental concessions to any employees, officers or shareholders of the Property
Manager or anyone related to such employees, officers or shareholders unless
such discounts or concessions are in lieu of salaries or other benefits to which
they would be contractually entitled. The Property Manager shall not lease any
space in the Project to itself or to any of its affiliates or subsidiaries.
2.6.4 The Property Manager shall reasonably
investigate all prospective tenants, and shall not rent to persons not meeting
credit standards reasonable for the market. The Property Manager shall obtain a
credit check for all prospective tenants through ▇▇▇▇ & Bradstreet, TRW or a
similar service ("Credit Check Companies"). The Property Manager shall retain
such information for the duration of the tenancy, and shall make it available to
the Tenants in Common upon reasonable notice, subject to compliance with any
confidentiality restrictions required by Credit Check Companies. The Property
Manager does not guarantee the accuracy of any such information or the financial
condition of any tenant.
2.6.5 The Property Manager and the Tenants in Common
agree that there shall be no discrimination against or segregation of any person
or group of persons on account of age, race, color, religion, creed, handicap,
sex or national origin in the leasing of the Project, nor shall the Tenants in
Common or the Property Manager permit any such practice or practices of
discrimination or segregation with respect to the selection, location, number or
occupancy of tenants.
2.6.6 The Property Manager shall engage contractors,
engineers, architects and other consultants on behalf of the Tenants in Common
to design and construct customary tenant improvements contemplated by the Leases
that are in accordance with the approved leases or the Budget. The Property
Manager shall oversee the design and construction of such tenant improvements.
For any contract requiring payment in excess of $50,000, the Property Manager
shall follow the bidding requirements specified in Section 2.9.
2.7 COLLECTION OF RENTS AND OTHER INCOME. The Property
Manager shall ▇▇▇▇ al tenants and shall use its commercially reasonable efforts
to collect all rent and other charges due and payable from any tenant or from
others for services provided in connection with the Project. The Property
Manager shall deposit all monies so collected in the Operating Account. The
Property Manager shall allocate all income, revenue and expense from the Project
to the Tenants in Common as set forth in the Tenants in Common Agreement.
2.8 REPAIRS AND MAINTENANCE. The Property Manager shall
maintain the buildings, appurtenances and grounds of the Project, other than
areas that are the responsibility of tenants, including, without limitation, all
ordinary and extraordinary repairs, cleaning, painting, decorations and
alterations including electrical, plumbing, carpentry, masonry, elevators and
such other routine repairs as are necessary or reasonably appropriate in the
course of maintenance of the Project (subject to the limitations of this
Agreement). The Property Manager shall pay actual and reasonable expenses for
materials and labor for such purposes from the Operating Account. The Property
Manager shall take reasonable precautions against fire, vandalism, burglary and
trespass to the Project.
2.9 CAPITAL EXPENDITURES. The Property Manager may make any
capital expenditure within any Budget approved by the Tenants in Common without
any further consent, provided that the Property Manager follows the bidding
requirements set forth in this Section 2.9 for a capital expenditure in excess
of $50,000. All other capital expenditures other than Emergency Expenditures
shall be subject to submittal of a revised Budget to the Tenants in Common.
Unless the Tenants in Common specifically waive such requirements, or approve a
particular contract, the Property Manager shall award any contract for a capital
improvement exceeding $50,000 in
cost on the basis of competitive bidding, solicited from a minimum of two (2)
written bids. The Property Manager shall accept the bid of the lowest bidder
determined by the Property Manager to be responsible and qualified.
2.10 SERVICE CONTRACTS, SUPPLIES AND EQUIPMENT.
2.10.1 The Property Manager may enter into or renew any
contract for cleaning, maintaining, repairing or servicing the Project or any of
the constituent parts of the Project (including contracts for fuel oil, security
or other protection, extermination, landscaping, architectural or engineering
services) contemplated by the Budget and consistent with the Operating Plan with
any unrelated third party. Each such service contract shall (a) be in the name
of the Tenants in Common, (b) be assignable to the nominee of the Tenants in
Common and (c) be for a term not to exceed one (1) year. Unless the Tenants in
Common specifically waive such requirements or approve a particular contract,
all service contracts for amounts in excess of $50,000 per year shall be subject
to the bidding requirements specified in Section 2.9.
2.10.2 If this Agreement terminates or is not renewed
pursuant to Section 10, the Property Manager, at the option of the Tenants in
Common, shall assign to the nominee of the Tenants in Common all of the Property
Manager's interest in all service agreements pertaining to the Project, if any.
2.10.3 At the expense of the Tenants in Common, the
Property Manager shall purchase, provide, and pay for all needed janitorial and
maintenance supplies, tools and equipment, restroom and toilet supplies, light
bulbs, paints, and similar supplies necessary to the efficient and economical
operation and maintenance of the Project. Such supplies and equipment shall be
the property of the Tenants in Common. All such supplies, tools, and equipment
shall be delivered to and stored at the Project and shall be used only in
connection with the management, operation, and maintenance of the Project.
2.10.4 The Property Manager shall use reasonable
efforts to purchase all goods, supplies or services at the lowest cost
reasonably available from reputable sources in the metropolitan area where the
Project is located. In making any contract or purchase hereunder, the Property
Manager shall use reasonable efforts to obtain favorable discounts for the
Tenants in Common and all discounts, rebates or commissions under any contract
or purchase order made hereunder shall inure to the benefit of the Tenants in
Common. The Property Manager shall make payments under any such contract or
purchase order to enable the Tenants in Common to take advantage of any such
discount if the Tenants in Common provide sufficient funds therefor.
2.11 TAXES, MORTGAGES. The Property Manager, unless otherwise
requested, shall obtain and verify bills for real estate and personal property
taxes, general and special real property assessments and other like charges
(collectively "Taxes") which are or may become liens against the Project and
appeal such Taxes as the Property Manager may decide in its reasonable judgment.
The Property Manager shall report any such Taxes that materially exceed the
amounts contemplated by the Budget to the Tenants in Common prior to the
Property Manager's payment thereof. The Property Manager, if requested by the
Tenants in Common, will cooperate to prepare an application for correction of
the assessed valuation (in cooperation with representatives of the Tenants in
Common) to be filed with the appropriate governmental agency. The Property
Manager shall pay, within the time required to obtain discounts, from funds
provided by the Tenants in Common or from the Operating Account, all utilities,
Taxes and payments due under each lease, mortgage, deed of trust or other
security instrument, if any, affecting the Project. To the extent contemplated
by the Budget and in conformance with the Operating Plan (as either may be
revised from time to time), the Property Manager may make any such payments.
2.12 TENANT RELATIONS. The Property Manager will use
reasonable efforts to develop and maintain good tenant relations in the Project.
At all times during the term hereof, the Property Manager shall use its
reasonable efforts to retain existing tenants in the Project and, after
completion of the initial leasing activity, to retain the new tenants. The
Property Manager shall use its reasonable efforts to secure compliance by the
tenants with the terms and conditions of their respective Leases.
2.13 MISCELLANEOUS DUTIES. The Property Manager shall (a)
maintain at the Property Manager's office at the Property Manager's address as
set forth in Section 12 or at the subcontractor to the Property Manager or at
the Project or at a designated office in the region of the Project and readily
accessible to the Tenants in Common orderly files containing rent records,
insurance policies, leases and subleases, correspondence, receipted
bills and vouchers, bank statements, canceled checks, deposit slips, debit and
credit memos, and all other documents and papers pertaining to the Project or
the operation thereof; (b) provide reports for the preparation and filing by the
Tenants in Common of each income or other tax return required by any
governmental authority, including annual statements allocating the expenses of
and income from the Project to each Tenant in Common; (c) consider and record
tenant service requests in systematic fashion showing the action taken with
respect to each, and thoroughly investigate and report to the Tenants in Common
in a timely fashion with appropriate recommendations all complaints of a nature
that might have a material adverse effect on the Project or the Budget; (d)
supervise the moving in and out of tenants and subtenants; arrange, to the
extent possible, the dates thereof to minimize disturbance to the operation of
the Project and inconvenience to other tenants or subtenants; and render an
inspection report, an assessment for damages and a recommendation on the
disposition of any deposit held as security for the performance by the tenant
under its lease with respect to each premises vacated; (e) check all bills
received for the services, work and supplies ordered in connection with
maintaining and operating the Project and, except as otherwise provided in this
Agreement, pay such bills when due and payable; and (f) not knowingly permit the
use of the Project for any purpose that might void any policy of insurance held
by the Tenants in Common or that might render any loss thereunder uncollectible.
All such records are the property of the Tenants in Common and will be delivered
to the Tenants in Common upon request.
3. BASIC INSURANCE.
3.1 INSURANCE.
3.1.1 The Property Manager, at the Tenants in Common's
expense, will obtain and keep in force adequate insurance against physical
damage (such as fire with extended coverage endorsement, boiler and machinery)
and against liability for loss, damage or injury to property or persons that
might arise out of the occupancy, management, operation or maintenance of the
Project, as contemplated by the Operating Plan and to the extent available at
commercially reasonable rates. The Property Manager shall not be required to
maintain earthquake or flood insurance unless expressly directed to do so by a
specific written notice from the Tenants in Common, but may do so in the
Property Manager's reasonable discretion. The Property Manager shall be a named
insured on all property damage insurance and an additional insured on all
liability insurance maintained with respect to the Project. In the event the
Property Manager receives insurance proceeds for the Project, the Property
Manager will take any required actions as set forth in the Loan Documents. In
the event that the Property Manager receives insurance proceeds that are not
governed by the terms of the Loan Documents, the Property Manager will either
(i) use such proceeds to replace, repair or refurbish the Project or (ii)
distribute such proceeds to the Tenants in Common, as directed by the Tenants in
Common. Any insurance proceeds distributed to the Tenants in Common will be
distributed subject to the fees owed to the Property Manager pursuant to this
Agreement.
3.1.2 As part of the Operating Plan, the Property
Manager shall advise the Tenants in Common in writing and make recommendations
with respect to the proper insurance coverage for the Project, taking into
account the insurance requirements set forth in any deed of trust or mortgage on
the Project, shall furnish such information as the Tenants in Common may
reasonably request to obtain insurance coverage and shall reasonably aid and
cooperate with respect to such insurance and any loss thereunder. The Tenants in
Common acknowledge that the Property Manager is not a licensed insurance agent
or insurance expert. Accordingly, the Property Manager shall be entitled to rely
on the advice of a reputable insurance broker or consultant regarding the proper
insurance for the Project.
3.1.3 The Property Manager shall investigate and
submit, as soon as reasonably possible, a written report to the insurance
carrier and the Tenants in Common as to all accidents, claims for damage
relating to the ownership, operation and maintenance of the Project, any damage
to or destruction of the Project and the estimated costs of repair thereof, and
prepare and file with the insurance company in a timely manner required reports
in connection therewith. Notwithstanding the foregoing, the Property Manager
shall not be required to give such notice to the Tenants in Common if the amount
of such claims, damage or destruction, as reasonably estimated by the Property
Manager, does not exceed $50,000 for any one occurrence. The Property Manager
shall settle all claims against insurance companies arising out of any policies,
including the execution of proofs of loss, the adjustment of losses, signing and
collection of receipts and collection of money, except that the Property Manager
shall not settle claims in excess of $50,000 without the prior approval of the
Tenants in Common as set forth in Section 1.2.2.
3.2 ADDITIONAL INSURANCE. Any insurance obtained by the
Property Manager for its own account and not for the benefit of the Tenants in
Common or the Project shall be at the Property Manager's own expense.
3.3 CONTRACTOR'S AND SUBCONTRACTOR'S INSURANCE. The Property
Manager shall require all contractors and subcontractors entering upon the
Project to perform services to have insurance coverage at the contractor's or
subcontractor's expense, in the following minimum amounts: (a) worker's
compensation - statutory amount; (b) employer's liability (if required under
applicable law) - $500,000 (minimum); and (c) comprehensive general liability
insurance, including comprehensive auto liability insurance covering the use of
all owned, non-owned and hired automobiles, with bodily injury and property
damage limits of $1,000,000 per occurrence. The Property Manager may waive such
requirements in its reasonable discretion. The Property Manager shall obtain and
keep on file a certificate of insurance that shows that each contractor and
subcontractor is so insured.
3.4 WAIVER OF SUBROGATION. To the extent available at
commercially reasonable rates, all property damage insurance policies required
hereunder shall contain language whereby the insurance carrier thereunder waives
any right of subrogation it may have with respect to the Tenants in Common or
the Property Manager.
4. FINANCIAL REPORTING AND RECORD KEEPING.
4.1 BOOKS OF ACCOUNTS. The Property Manager shall maintain
adequate and separate books and records for the Project with the entries
supported by sufficient documentation to ascertain their accuracy with respect
to the Project. Such books and records shall contain a separate allocation of
income and expenses to each Tenant in Common. The Tenants in Common agree to
provide to the Property Manager any financial or other information reasonably
requested by the Property Manager to carry out its services hereunder. The
Property Manager shall maintain such books and records at the Property Manager's
office at the Property Manager's address as set forth in Section 12 or at the
subcontractor to the Property Manager or at the Project or at a designated
office in the region of the Project. The Property Manager shall ensure such
control over accounting and financial transactions as is reasonably necessary to
protect the Tenants in Common's assets from theft, error or fraudulent activity
by the Property Manager's employees. The Property Manager shall bear losses
arising from such instances, including, without limitation, the following: (a)
theft of assets by the Property Manager's employees, principals, or officers or
those individuals associated or affiliated with the Property Manager; (b)
overpayment or duplicate payment of invoices arising from either fraud or gross
negligence, unless credit is subsequently received; (c) overpayment of labor
costs arising from either fraud or gross negligence, unless credit is
subsequently received by the Tenants in Common; (d) overpayment resulting from
payment from suppliers to the Property Manager's employees or associates arising
from the purchase of goods or services for the Project; and (e) unauthorized use
of facilities by the Property Manager or the Property Manager's employees or
associates.
4.2 FINANCIAL REPORTS. On or about the forty-fifth (45th)
day following each quarter, the Property Manager shall furnish to the Tenants in
Common a report of all significant transactions occurring during the prior
quarter. These reports shall show all collections, delinquencies, uncollectible
items, vacancies and other matters pertaining to the management, operation, and
maintenance of the Project during the quarter. The Property Manager also shall
deliver to the Tenants in Common within a reasonable time after (i) the close of
a calendar year and (ii) the termination of this Agreement, a balance sheet for
the Project. The statement of income and expenses, the balance sheet, and all
other financial statements and reports shall be prepared on an accrual basis
according, to the extent possible, to generally accepted accounting principles
(except that footnote disclosures are not required). The Property Manager may,
but shall not be required, to obtain audited financial statements for the
Project. The Property Manager shall also comply with all reporting requirements
relating to the operation of the Project required under any deed of trust
affecting the Project.
4.3 SUPPORTING DOCUMENTATION. As additional support to the
quarterly financial statement, unless otherwise directed by the Tenants in
Common, and at the expense of the Tenants in Common, the Property Manager shall
maintain and make available at the Property Manager's office at the Property
Manager's address as set forth in Section 12 or at the subcontractor to the
Property Manager or at the Project or at a designated office in the region of
the Project the following: (a) all bank statements, bank deposit slips, bank
debit and credit memos, canceled checks, and bank reconciliations; (b) detailed
cash receipts and disbursement records; (c) detailed trial
balance for receivables and payables and billed and unbilled revenue items; (d)
rent roll of tenants; (e) paid invoices (or copies thereof); (f) summaries of
any adjusting journal entries; (g) supporting documentation for payroll, payroll
taxes and employee benefits; (h) appropriate details of accrued expenses and
property records; (i) information regarding the operation of the Project
necessary for preparation of the tax returns for the Tenants in Common; and (j)
market study of competition (quarterly only). The Property Manager shall deliver
a copy of the documents described in (a) through (j) above to any Tenant in
Common upon written request. The Property Manager shall maintain within such
items separate income and expense accounts for each Tenant in Common, where and
as appropriate.
4.4 TAX INFORMATION. The Property Manager shall provide the
Tenants in Common with sufficient information so that the Tenants in Common can
prepare their income tax returns with appropriate adjustments to convert the
information prepared on an accrual basis to the cash method of accounting.
5. RIGHT TO AUDIT. Each of the Tenants in Common and their
representatives may examine all books, records and files maintained for the
Tenants in Common by the Property Manager. The Tenants in Common may perform any
audit or investigations relating to the Property Manager's activities at any
office of the Property Manager if such audit or investigation relates to the
Property Manager's activities for the Tenants in Common. Should any of the
Tenants in Common discover defects in internal control or errors in record
keeping, the Property Manager shall undertake with all appropriate diligence to
correct such discrepancies either upon discovery or within a reasonable period
of time. The Property Manager shall inform the Tenants in Common in writing of
the action taken to correct any audit discrepancies.
6. BANK ACCOUNTS.
6.1 OPERATING ACCOUNT. The Property Manager shall deposit
all rents and other funds collected from the operation of the Project in a
reputable bank or financial institution in a special trust or depository account
or accounts for the Project maintained by the Property Manager for the benefit
of the Tenants in Common. The Property Manager shall maintain books and records
of the funds deposited in the accounts and withdrawals therefrom (including
records of deposits and withdrawals credited and charged to each Tenant in
Common) (such accounts together with any interest earned thereon, shall
collectively be referred to herein as the "Operating Account"). The Tenants in
Common shall maintain the Operating Account so that an amount at least as great
as the budgeted expenses for such month is in such Operating Account as of the
first of each month. The Property Manager shall pay from the Operating Account
the operating expenses of the Project and any other payments relative to the
Project as required by this Agreement. If more than one account is necessary to
operate the Project, each account shall have a unique name, except to the extent
any Lender requires sub-accounts within any account.
6.2 SECURITY DEPOSIT ACCOUNT. If law or a Lender requires a
segregated account of security deposits, the Property Manager will open a
separate account at a reputable bank or other financial institution. The
Property Manager shall maintain such account in accordance with applicable law
and/or the applicable loan agreement. The Property Manager shall use the account
only to maintain security deposits. The Property Manager shall inform the bank
or financial institution to hold the funds in trust for the Tenants in Common.
The Property Manager shall maintain detailed records of all security deposits
deposited, and allow the Tenants in Common or its designees access to such
records. The Property Manager may return such deposits to any tenant in the
ordinary course of business in accordance with the terms of the applicable
lease.
6.3 ACCESS TO ACCOUNT. As authorized by signature cards,
representatives of the Property Manager shall have access to and may draw upon
all funds in the accounts described in Sections 6.1 and 6.2 without the approval
of the Tenants in Common. Additionally, representatives of the Property Manager
shall have access to and may draw upon any funds escrowed or held in reserves
for capital expenditures without the approval of the Tenants in Common, provided
that the requirements of Section 2.9 and any additional Lender requirements with
respect to such amounts are satisfied. The Tenants in Common may not withdraw
funds from such accounts without the Property Manager's signature except
following the Property Manager's default beyond any applicable notice and cure
period or the termination of this Agreement.
7. PAYMENTS OF EXPENSES. The Property Manager shall pay all
expenses of the operation, maintenance and repair with respect to the Project
contemplated by the Budget directly from the Operating Account
or shall be reimbursed by the Tenants in Common, subject to the conditions set
forth in Section 2, including the following: (a) costs of the gross salary and
wages or proportional shares thereof, payroll taxes, worker's compensation
insurance, and all other benefits of employees required to manage, operate and
maintain the Project properly, adequately, safely and economically, subject to
this Agreement, provided that the Property Manager shall not pay such employees
in advance; (b) cost to correct the violation of any governmental requirement
relating to the leasing, use, repair and maintenance of the Project, or relating
to the rules, regulations or orders of the local Board of Fire Underwriters or
other similar body, if such cost is not the result of the Property Manager's
gross negligence or willful misconduct; (c) actual and reasonable cost of making
all repairs, decorations and alterations if such cost is not the result of the
Property Manager's gross negligence or willful misconduct; (d) cost incurred by
the Property Manager in connection with all service agreements; (e) cost of
collection of delinquent rents collected by a collection agency or attorney; (f)
legal fees of attorneys; (g) cost of capital expenditures subject to the
restrictions in Section 2.9 and in this Section; (h) cost of printed checks for
each account required by the Tenants in Common; (i) cost of utilities; (j) cost
of advertising; (k) cost of printed forms and supplies required for use at the
Project; (l) management compensation set forth in Section 9; (m) the cost of
tenant improvements to the Project; (n) all hiring, relocation and termination
costs for any employee, including those individuals whose salaries and benefits
are paid by the Tenants in Common; (o) broker commissions; (p) debt service; (q)
the cost of services, contractors and insurance; (r) reimbursement of the
Property Manager's out-of-pocket costs and expenses to the extent not prohibited
by Section 8; (s) general accounting and reporting services within the
reasonable scope of the Property Manager's responsibility to the Tenants in
Common; (t) cost of forms, papers, ledgers, and other supplies and equipment
used in the Property Manager's office at any location; (u) cost of electronic
data processing equipment, including personal computers located at the Property
Manager's office off the Project for preparation of reports, information and
returns to be prepared by the Property Manager under the terms of this
Agreement; (v) cost of electronic data processing provided by computer service
companies for preparation of reports, information and returns to be prepared by
the Property Manager under the terms of this Agreement; (w) travel and
entertainment expenses intended to advance the interests of the Project such as
travel and entertainment for prospective new tenants or for brokers; and (x) all
overhead and indirect expenses of the Property Manager's office, including, but
not limited to, communication costs (telephone, postage, etc.), computer rentals
or time, supplies (paper, envelopes, business forms, checks, payroll forms and
record cards, forms for governmental reports, etc.), printing, equipment,
insurance, fidelity bonds, taxes and license fees, and general office expenses
allocable to the Project. All other amounts payable with respect to the Project
shall be payable from the Operating Account only after a revised Budget has been
submitted to the Tenants in Common, as provided in this Agreement. If there are
not sufficient funds in the account to make any such payment, the Property
Manager shall notify the Tenants in Common, if possible, at least ten (10) days
prior to any delinquency so that the Tenants in Common have an opportunity to
deposit sufficient funds in the Operating Account to allow for such payment
before the imposition of any penalty or late charge. No later than the end of
the succeeding month, the Property Manager shall remit to the Tenants in Common
all unexpended funds for the prior month, except for reserves reflected in the
Budget or required by the Lender which shall remain in the Operating Account in
the amount equal to the expenses budgeted for the month in which the remittance
is to be made. Except with respect any expenses that are determined to be
properly allocable on other than a pro rata basis, all expenses of the Project
shall be allocated to the Tenants in Common on a pro rata basis.
8. PROPERTY MANAGER'S COSTS NOT TO BE REIMBURSED.
8.1 NON-REIMBURSABLE COSTS. The following expenses or costs
incurred by or on behalf of the Property Manager in connection with the
management and leasing of the Project shall be at the sole cost and expense of
the Property Manager and shall not be reimbursed by the Tenants in Common: (a)
costs attributable to losses arising from gross negligence, willful misconduct
or fraud on the part of the Property Manager, the Property Manager's associates
or employees; and (b) cost of insurance purchased by the Property Manager for
its own account.
8.2 LITIGATION. The Property Manager will be responsible for
and hold the Tenants in Common harmless from, all costs relating to disputes
with employees for worker's compensation (to the extent not covered by
insurance), discrimination or wrongful termination, including legal fees and
other expenses.
9. COMPENSATION.
9.1 PROPERTY MANAGEMENT FEE. The Property Manager shall
receive, for its services in managing the day-to-day operations of the Project
in accordance with the terms of this Agreement, a monthly property management
fee (the "Property Management Fee") equal to four percent (4%) of the Gross
Revenues (defined below), which Property Management Fee shall be in addition to
the Asset Management Fee (defined in Section 9.2) and any out-of-pocket and
on-site personnel costs that are reimbursable pursuant to Section 7. "Gross
Revenues" shall be all gross ▇▇▇▇▇▇▇▇ from the operations of the Project
including rental receipts, lease buy-out payments, and reimbursements by tenants
for common area expenses, operating expenses and taxes and similar pass-through
obligations paid by tenants, but excluding (i) security deposits received from
tenants and interest accrued thereon for the benefit of the tenant until such
deposits or interest are included in the taxable income of the Tenants in
Common; (ii) advance rents (but not lease buy-out payments) until the month in
which payments are to apply as rental income; (iii) reimbursements by tenants
for work done for that particular tenant, (iv) proceeds from the sale or other
disposition of all or any part of the Project, (v) insurance proceeds received
by the Tenants in Common as a result of any insured loss (except proceeds from
rent insurance or the excess of insurance proceeds for repairs over the actual
costs of such repairs), (vi) condemnation proceeds not attributable to rent,
(vii) capital contributions made by the Tenants in Common; (viii) proceeds from
capital, financing and any other transactions not in the ordinary course of the
operation of the Project, (ix) income derived from interest on investments or
otherwise, (x) abatement of taxes, awards arising out of takings by eminent
domain, discounts and dividends on insurance policies, and (xi) rental
concessions not paid by third parties. The Property Management Fee shall be
payable monthly from the Operating Account or from other funds timely provided
by the Tenants in Common. Upon termination of this Agreement, the parties will
prorate the Management Fee on a daily basis to the effective date of such
cancellation or termination. Upon a sale of the Project, the Property Manager
shall receive additional compensation equal to the previous month's Property
Management Fee as compensation for work to be performed in connection with the
sale or completion of managing matters relating to each tenant.
9.2 ASSET MANAGEMENT FEE. The Property Manager shall
receive, for its services in supervising the overall management and operation of
the Project in accordance with the terms of this Agreement, an annual asset
management fee (the "Asset Management Fee") equal to $100,000, and pro rated for
any partial year, which Asset Management Fee shall be in addition to the
Property Management Fee (defined in Section 9.1) and shall be payable pro rata
on a monthly basis on the first day of each month (or in the case of the first
partial month beginning on the date hereof a pro rata amount payable on the date
hereof) plus any out-of-pocket and on-site personnel costs that are reimbursable
pursuant to Section 7. The Property Manager may defer, in its sole discretion,
all or any portion of such annual Asset Management Fee. Any such unpaid Asset
Management Fees shall, in all event, be paid upon the earliest to occur of the
following events: (i) the termination of this Agreement, (ii) the sale of the
Project or (iii) 10 years from the accrual of any such unpaid Asset Management
Fee. Upon termination of this Agreement or upon a sale of the Project, the
parties will prorate the Asset Management Fee on a daily basis to the effective
date of such cancellation or termination.
9.3 LEASING COMMISSIONS. The Property Manager, or an
affiliate, shall receive, for its services in leasing the Project in accordance
with the terms of this Agreement, a leasing commission (the "Leasing
Commission") as set forth on the Schedule of Leasing Commissions attached hereto
as Exhibit D.
9.4 CONSTRUCTION MANAGEMENT FEE. The Property Manager, or an
affiliate, shall receive, for its services in supervising any construction or
repair project in or about the Project, a construction management fee (the
"Construction Management Fee") equal to five percent (5%) of any amount
(including related professional services) that is expended for construction,
tenant improvement or repair projects.
9.5 FINANCING FEE. The Property Manager, or an affiliate,
will receive from each Tenant in Common, a fee equal to 1.00% of the principal
amount of any loan obtained by or for the Tenants in Common; provided, however,
no separate financing fee shall be paid with respect to the original loan made
(or to be made immediately upon execution of this Agreement) by the Lender. This
fee will be payable to the Property Manager or its affiliate whether or not an
outside loan broker is used. The financing fee will be pro rated among the
Tenants in Common.
9.6 SELLING COMMISSION. If, during the term of this
Agreement, the Tenants in Common determine to sell or exchange the Project, or
any portion thereof (including an undivided interest of a single Tenant in
Common in the event the Property Manager participates in such sale), the Tenants
in Common hereby grant the
Property Manager, or an affiliate, for a 180-day term, the right to participate
in the marketing of the Project on terms acceptable to the Tenants in Common.
The Tenants in Common shall notify the Property Manager in writing of the
determination to sell or exchange, which notification shall specify the
commencement and termination date of such 180-day term. If the Project is sold,
exchanged or otherwise disposed of as a result of offers received during such
180-day term, and the Property Manager participated in the sale, a commission
shall be paid by the Tenants in Common to the Property Manager equal to two and
one half percent (2 1/2%) of the sales price. In addition to the foregoing, the
Property Manager may at any time negotiate with potential purchasers and submit
offers to purchase to the Tenants in Common for approval. If the Project is
sold, exchanged or otherwise disposed of as a result of any such offers, the
Property Manager shall be entitled to a commission paid by the Tenants in Common
in an amount equal to two and one half percent (2 1/2%) of the sales price. If
another broker participates in the transaction, then the Property Manager may
cooperate with that broker, on terms and conditions acceptable to the Property
Manager and approved by the Tenants in Common, with commissions to the other
broker to be paid by the Tenants in Common. Notwithstanding the above, if there
is a broker fee paid to a third party broker, the total commission paid to the
Property Manager, or its affiliate, and the third party broker shall not exceed
two and one half percent (2 1/2%).
9.7 APPLICATION OF FEES. Each Tenant in Common shall be
responsible for his or her percentage share, based on percentage ownership
interests in the Project, of all of the fees set forth in this Agreement.
9.8 AFFILIATE OF BEHRINGER. Notwithstanding the provisions
of this Section 9, in the event that Behringer or any of its affiliates own an
interest in the Project and such party is subject to the National Association of
Security Dealers guidelines attributable to management fees, the fees charged to
such Tenant in Common shall not exceed the amount that is allowed to be paid
under such guidelines.
10. TERMINATION.
10.1 TERMINATION BY THE TENANTS IN COMMON. This Agreement
shall terminate on December 31, 2020; provided, however, that this Agreement
shall terminate on December 31, 2003 and each anniversary of such date unless
all of the Tenants in Common consent to the extension of this Agreement pursuant
to Section 1.2.1.
10.2 TERMINATION BY THE PROPERTY MANAGER.
10.2.1 The Property Manager shall have the right to
terminate this Agreement, provided that the Tenants in Common are in default in
the performance of any of their obligations hereunder, and such default remains
uncured for thirty (30) days following the Property Manager's giving of written
notice of such default to the Tenants in Common.
10.2.2 The Property Manager shall have the right to
terminate this Agreement for any reason upon 60 days written notice.
10.3 FINAL ACCOUNTING. Within thirty (30) days after
termination of this Agreement for any reason, the Property Manager shall: (a)
deliver to the Tenants in Common a final accounting, setting forth the balance
of income and expenses on the Project as of the date of termination; (b)
transfer to any account indicated by the Tenants in Common any balance or monies
of the Tenants in Common or tenant security deposits held by the Property
Manager with respect to the Project (or transfer the accounts in which such sums
are held as instructed by the Tenants in Common); and (c) deliver to a
subsequent property manager or other agent indicated by the Tenants in Common
all materials and supplies, keys, books and records, contracts, leases, receipts
for deposits, unpaid bills and other papers or documents that pertain to the
Project. For a period of thirty (30) days after such expiration or cancellation
for any reason other than the Tenants in Common's default, the Property Manager
shall be available, through its senior executives familiar with the Project, to
consult with and advise the Tenants in Common or any person or entity succeeding
to the Tenants in Common as owner of the Project or such other person or persons
selected by the Tenants in Common regarding the operation and maintenance of the
Project. In addition, the Property Manager shall cooperate with the Tenants in
Common in notifying all tenants of the Project of the expiration and termination
of this Agreement, and shall use reasonable efforts to cooperate with the
Tenants in Common to accomplish an orderly transfer of the operation and
management of the Project to a party designated by
the Tenants in Common. The Property Manager shall receive its monthly Management
Fee for such services. The Property Manager shall, at its cost and expense,
promptly remove all signs wherever located indicating that it is the Property
Manager and replace and repair any damage resulting therefrom. Termination of
this Agreement shall not release either party from liability for failure to
perform any of the duties or obligations as expressed herein and required to be
performed by such party for the period before the termination.
11. CONFLICTS. The Property Manager shall not deal with or engage,
or purchase goods or services from, any subsidiary or affiliated company of the
Property Manager in connection with the management of the Project for amounts
above market rates.
12. NOTICES. Any notice to be given or other document or payment to
be delivered by any party to any other party hereunder may be delivered in
person, or may be deposited in the United States mail, duly certified or
registered, with postage prepaid, or by Federal Express or other similar
overnight delivery service, and addressed to the party for whom intended, as
follows:
To the Property Manager at:
Behringer Harvard TIC Management Services LP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
To the Tenants in Common at:
c/o Behringer Harvard Minnesota Center TIC I, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With a copy to the Tenants in Common at the addresses specified
on Exhibit "A" of the Tenants in Common Agreement.
Any party hereto may from time to time, by written notice to the others,
designate a different address which shall be substituted for the one above
specified. Unless otherwise specifically provided for herein, all notices,
payments, demands or other communications given hereunder shall be in writing
and shall be deemed to have been duly given and received (i) upon personal
delivery, or (ii) as of the third business day after mailing by United States
registered or certified mail, postage prepaid, addressed as set forth above, or
(iii) the immediately succeeding business day after deposit with Federal Express
or other similar overnight delivery system.
13. MISCELLANEOUS.
13.1 ASSIGNMENT. The Property Manager may not assign this
Agreement without the prior written consent of the Tenants in Common, except
with respect to an assignment to an affiliate, including, but not limited to a
wholly-owned subsidiary, which shall be permissible under this Agreement, which
consent may be withheld in the Tenants in Common's sole and absolute discretion;
provided, however, that the Property Manager may assign or delegate (a) the
day-to-day management responsibilities to a nationally recognized property
manager with a local presence, (b) leasing services to a party with local
leasing expertise, and/or (c) disposition services to a party with recognized
expertise in dispositions of properties of a type similar to the Project, in
each case so long as the Property Manager continues to supervise the overall
management of the Project and provide other customary asset management services.
Subject to the Tenants in Common Agreement, a Tenant in Common may assign its
rights under this Agreement to a party acquiring its undivided interest
("Successor Tenant in Common"). A Successor Tenant in Common shall take such
interest subject to this Agreement, and the Tenant in Common and Successor
Tenant in Common shall execute an agreement whereby (i) the assigning Tenant in
Common assigns to the Successor Tenant in Common all of its right, title and
interest in and to this Agreement; and (ii) the Successor Tenant in Common
assumes and agrees to perform faithfully and to be bound by all of the terms,
covenants, conditions, provisions and agreements of this Agreement with respect
to the undivided interest to be transferred.
Upon execution of such assignment and assumption agreement, the assigning Tenant
in Common shall be relieved of all liability accruing after the effective date
of the assignment and, without further action by the Property Manager or the
other Tenants in Common, the Successor Tenant in Common shall become a party to
this Agreement.
13.2 GENDER. Each gender shall include each other gender. The
singular shall include the plural and vice-versa.
13.3 AMENDMENTS. Except as otherwise provided, each
amendment, addition or deletion to this Agreement shall not be effective unless
approved by the parties in writing.
13.4 ATTORNEYS' FEES. In any action or proceeding between the
Property Manager and the Tenants in Common arising from or relating to this
Agreement or the enforcement or interpretation hereof, the party prevailing in
such action or proceeding shall be entitled to recover from the other party all
of its reasonable attorneys' fees and other costs and expenses of the action or
proceeding.
13.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas without
regard to any choice of law rules.
13.6 VENUE. Any action relating to or arising out of this
Agreement shall be brought only in a court of competent jurisdiction located in
Dallas, Texas.
13.7 HEADINGS. All headings are only for convenience and ease
of reference and are irrelevant to the construction or interpretation of any
provision of this Agreement.
13.8 REPRESENTATIONS. The Property Manager represents and
warrants that it is fully qualified and licensed, to the extent required by law,
to manage and lease real estate and perform all obligations assumed by the
Property Manager hereunder. The Property Manager shall use reasonable efforts to
comply with all such laws now or hereafter in effect.
13.9 INDEMNIFICATION BY THE PROPERTY MANAGER.
13.9.1 The Property Manager shall indemnify, defend and
hold the Tenants in Common and their shareholders, officers, directors, and
employees harmless from any and all claims, demands, causes of action, losses,
damages, fines, penalties, liabilities, costs and expenses, including reasonable
attorneys' fees and court costs, sustained or incurred by or asserted against
the Tenants in Common by reason of the acts of the Property Manager which arise
out of the gross negligence, willful misconduct or fraud of the Property
Manager, its agents or employees or the Property Manager's breach of this
Agreement. If any person or entity makes a claim or institutes a suit against
the Tenants in Common on a matter for which the Tenants in Common claim the
benefit of the foregoing indemnification, then (a) the Tenants in Common shall
give the Property Manager prompt notice thereof in writing; (b) the Property
Manager may defend such claim or action by counsel of its own choosing provided
such counsel is reasonably satisfactory to the Tenants in Common; and (c)
neither the Tenants in Common nor the Property Manager shall settle any claim
without the other's written consent.
13.9.2 The Property Manager acknowledges that the
Tenants in Common have or will be entering into loan documents, which may
include provisions for personal liability for the Tenants in Common on certain
"nonrecourse carve-outs." The Property Manager hereby agrees that to the extent
that the Tenants in Common are required to make payments on such indemnification
as a direct result of (i) the Property Manager's fraud, willful misconduct or
misappropriation, (ii) the Property Manager's commission of a criminal act,
(iii) the misapplication by Property Manager of any funds derived from the
Project received by the Property Manager, including any failure to apply such
proceeds in accordance with the requirements of any existing loan documents
applicable to the Project, or (iv) damage or destruction to the Project caused
by acts of the Property Manager that are grossly negligent, the Property Manager
will indemnify the Tenants in Common for any such liability that was caused by
such actions.
13.10 INDEMNIFICATION BY THE TENANTS IN COMMON. The Tenants in
Common shall indemnify, defend and hold the Property Manager and its
shareholders, officers, directors and employees harmless from any and all
claims, demands, causes of action, losses, damages, fines, penalties,
liabilities, costs and expenses, including reasonable attorneys' fees and court
costs, sustained or incurred by or asserted against the Property Manager by
reason of the operation, management, and maintenance of the Project and the
performance by the Property Manager of the Property Manager's obligations under
this Agreement but only to the extent of each Tenants in Common's interest in
the Project, except those which arise from the Property Manager's gross
negligence, willful misconduct or fraud. If any person or entity makes a claim
or institutes a suit against the Property Manager on matter for which the
Property Manager claims the benefit of the foregoing indemnification, then (a)
the Property Manager shall give the Tenants in Common prompt notice thereof in
writing; (b) the Tenants in Common may defend such claim or action by counsel of
their own choosing provided such counsel is reasonably satisfactory to the
Property Manager; (c) neither the Property Manager nor the Tenants in Common
shall settle any claim without the other's written consent; and (d) this
subsection shall not be so construed as to release the Tenants in Common or the
Property Manager from any liability to the other for a breach of any of the
covenants agreed to be performed under the terms of this Agreement.
13.11 COMPLETE AGREEMENT. This Agreement shall supersede and
take the place of any and all previous agreements entered into between the
parties with respect to the Project.
13.12 SEVERABILITY. If any provisions of this Agreement or
application to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement, where the application of such provisions or
circumstances other than those as to which it is determined to be invalid or
unenforceable shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
13.13 NO WAIVER. The failure by either party to insist upon
the strict performance of or to seek remedy of any one of the terms or
conditions of this Agreement or to exercise any right, remedy, or election set
forth herein or permitted by law shall not constitute or be construed as a
waiver or relinquishment for the future of such term, condition, right, remedy
or election, but such item shall continue and remain in full force and effect.
All rights or remedies of the parties specified in this Agreement and all other
rights or remedies that they may have at law, in equity or otherwise shall be
distinct, separate and cumulative rights or remedies, and no one of them,
whether exercised or not, shall be deemed to be in exclusion of any other right
or remedy of the parties.
13.14 BINDING EFFECT. This Agreement shall be binding and
inure to the benefit of the parties and their respective successors and assigns.
13.15 ENFORCEMENT OF THE PROPERTY MANAGER'S RIGHTS. In the
enforcement of its rights under this Agreement, the Property Manager shall not
seek or obtain a money judgment or any other right or remedy against any
shareholders or disclosed or undisclosed principals of the Tenants in Common.
The Property Manager shall enforce its rights and remedies solely against the
estate of the Tenants in Common in the Project or the proceeds of any sale of
all or any portion of the Tenants in Common's interest therein.
13.16 COUNTERPARTS. This Agreement may be executed in several
counterparts, and all so executed shall constitute one Agreement, binding on all
of the parties hereto, notwithstanding that all of the parties are not signatory
to the original or the same counterpart.
14. SPECIAL LENDER PROVISIONS.
14.1 The Tenants in Common hereby grant to Property Manager
the power and authority: (i) to discuss with the owner and holder of the
Greenwich Capital Loan (as hereinafter defined) ("Lender") in connection with
all matters arising under the Loan Documents (as hereinafter defined) that
involve the Project and its management, on behalf of the Tenants in Common, and
(ii) to carry-out all of Property Manager's obligations, authority and duties
under this Agreement, including, without limitation, those set forth in Section
2. The Property Manager is expressly empowered and authorized to make
disbursement requests from, and to receive draws or disbursements from all
reserve accounts established under the Loan Documents on behalf of Tenants in
Common and to receive disbursements from any lockboxes on behalf of Tenants in
Common. Each Tenant in Common by its
execution or assumption hereof acknowledges and confirms the authorization
hereby expressly given to Lender to confer with Property Manager on all matters
arising under the Loan Documents insofar as they relate to the management and
operation of the Property and the obligations of the Tenants in Common to Lender
in connection therewith. Lender may rely upon the provisions of this Section
14.1, and the actions of the Property Manager taken pursuant thereto, without
further inquiry, and Tenants in Common shall be bound by any such action
Property Manager may take; provided, however, that nothing set forth herein
shall excuse the Property Manager from obtaining the consent of the Tenants in
Common if required hereunder or pursuant to the Tenant in Common Agreement.
14.2 In addition, the power and authority granted by the
Tenants in Common shall include the power and authority to execute, acknowledge,
swear to the execution, acknowledgment of and the filing of documents involving
the ownership, financing, management, and operation of the Project consistent
with this Agreement and the Tenants in Common Agreement, and any and all such
other documents as may be necessary to implement the management powers of
Property Manager set forth in this Agreement and the Tenants in Common
Agreement.
14.3 Notwithstanding any of the provisions of this Section
14, as between Property Manager, on the one hand, and Tenants in Common, on the
other hand, this power and authority shall in no event empower Property Manager
to purchase, transfer, sell, exchange or encumber the Project or execute any
document or instrument for any Tenant in Common.
14.4 The Property Manager may exercise the power and
authority set forth in this Agreement by a facsimile signature.
14.5 Each Tenant in Common and Property Manager hereby
acknowledges and agrees that Greenwich Capital Financial Products, Inc. is
making a $30,000,000 loan (the "Greenwich Capital Loan") to be secured by a deed
of trust upon the Project and that for all purposes hereunder such deed of trust
shall qualify as and be the first lien deed of trust encumbering the Project.
14.6 Each of the Tenants in Common and the Property Manager
hereby acknowledges and agrees that its rights and remedies provided for
anywhere in this Agreement, including, without limitation, all rights of
indemnity or defense provided for above, and any and all fees payable hereunder
are subject and subordinate as to payment and in all other respects to the terms
and provisions of and the liens and interests of the Greenwich Capital Loan and
the documents and instruments evidencing, securing or governing the Lender Loan
(collectively, the "Loan Documents"); provided, however, that nothing set forth
herein shall prohibit the current payment of amounts due under this Agreement.
Each of the Tenants in Common and the Property Manager hereby waives during the
term of the Greenwich Capital Loan any and all lien rights that it may have
against any Tenant in Common's undivided interest or in the Property as a whole
as a result of any default hereunder or for the payment of any sum due
hereunder. In addition, each of the Tenants in Common and the Property Manager
hereby irrevocably agrees to stand still and not to enforce any of its rights or
remedies hereunder, at law or in equity, including, without limitation, by
bringing any legal action or proceeding (including, without limitation, any
involuntary bankruptcy proceeding) or by prosecuting any claim in any
foreclosure proceeding or other legal action or proceeding commenced by Lender,
until the Greenwich Capital Loan has been indefeasibly paid in full. Each of the
Tenants in Common and the Property Manager agrees that all applicable statutes
of limitation shall be tolled during any such stand still period. Each of the
Tenant in Common and the Property Manager hereby irrevocably assigns to Lender,
during the term of the Greenwich Capital Loan, its right to vote in any
bankruptcy or similar proceeding of any other Tenant in Common or Property
Manager. Each of the Tenants in Common and Property Manager hereby acknowledges
and agrees that, notwithstanding anything to the contrary elsewhere set forth in
this Agreement, Lender is an intended third party beneficiary of the terms and
provisions of this Section 14, that this Section 14 may be enforced by Lender
and that the terms and provisions of this Section 14 may not be terminated or
modified without the prior written consent of Lender in its sole and absolute
discretion, until the Greenwich Capital Loan has been indefeasibly paid in full.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
PROPERTY MANAGER:
Behringer Harvard TIC Management Services LP,
a Texas limited partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
TENANTS IN COMMON:
Behringer Harvard Minnesota Center TIC I, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Secretary
Behringer Harvard Minnesota Center TIC II, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Secretary
