MANAGEMENT AGREEMENT
This
Management Agreement (“Agreement”) is made as of June 21, 2010 between ARC NYRR
61st Street
LLC, a Delaware limited liability company ("Owner") and CB Xxxxxxx Xxxxx, Inc.,
a Delaware corporation ("Manager") with reference to the following
facts:
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A.
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Owner
is the owner of, or is contemplating the acquisition of, the land and
improvements commonly known as the Interior Design Building,
and located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
“Property”).
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B.
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Manager
represents that it is in the business of managing properties similar to
the Property and possesses the skills and experience necessary for the
efficient, professional management of the
Property.
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C.
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Owner
desires to engage the services of Manager in connection with managing the
Property and Manager desires to provide such services to
Owner.
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Now,
therefore, in consideration of the following promises, obligations and
agreements, Owner and Manager agree as follows:
ARTICLE
I - BASIC TERMS
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1.1
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Effective
Date: Manager's appointment under Article II shall
become effective as of the date hereof (the "Effective Date"), except that
if this Agreement is executed by Owner in anticipation of acquiring the
Property, the Effective Date shall be the date of such acquisition
(“Acquisition Date”) and Owner shall be under no obligation to Manager
unless Owner acquires the
Property.
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1.2
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Term: The
term of this Agreement shall commence on the Effective Date and shall
continue for a period of Twelve (12) months, and thereafter the term shall
be automatically renewed for additional periods of twelve months each,
subject at all times to the rights of termination set forth in Section
11.1.
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1.3
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Limit
on Amount Authorized For Non-Emergency Purchase and Repairs and Contact
Amount Requiring Owner Approval. The limit on the amount
Manager may incur for non-emergency purchases or repairs under Section 4.4
is $5,000. Owner’s prior written approval is required under
Section 4.5(b) of any contract for more than
$5,000.
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1.4
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Bank
and Bank Account: Owner and/or Owner’s lender shall
designate a bank (the “Bank”) in which the rents and other revenues from
the Property shall be deposited pursuant to Section 4.10 (the “Lockbox
Account”). Funds in the Lockbox Account shall be swept into the
Owner’s operating account on
a weekly basis (or more or less frequently as determined by Owner and
subject to the requirements of Owner’s lender) (the “Owner’s Operating
Account”). Owner shall periodically transfer funds from the
Owner’s Operating Account into a client trust account maintained by the
Manager and named as follows: “ARC NYRR E61ST Building
Operating Account” (the “Bank Account”). The Bank Account will
also be used to pay all approved and authorized expenses for the
Property, as set forth herein. Manager is authorized as “Agent
for Owner” to draw on the Bank Account in accordance with the provisions
of this Agreement, provided, however, Owner shall have the right to revoke
such authorization at any time during the Term of this
Agreement.
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1.5
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Address
of Owner. Unless changed by written notice to Manager,
the address of Owner for notices under Section 12.2 shall
be: c/o American Realty Capital
II, LLC, attention Xxxxxxx X. Xxxxxx, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX
00000.
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1.6
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Address
of Manager. Unless changed by written notice to Owner,
the address of Manager for notices under Section 12.2 shall
be:
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CB
Xxxxxxx Xxxxx, Inc.
000 Xxxx
Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Senior Vice President Legal
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1.7
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Management
Fee. Subject to Article X, the management fee payable to
Manager for its services under this Agreement shall be an amount per month
equal to $38,600 per year ($3,216.67 per month). The management
fee shall be due and payable in the month in which it is
earned. In the event, this Agreement is for a term of more than
one (1) year, or is extended for an additional year(s), the management fee
will be increased by three (3%) percent for each year. In the
event, this Agreement is extended on a month-to-month basis, the
management fee will be increased three (3%) percent for each successive
twelve (12) month period.
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ARTICLE
II - APPOINTMENT
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2.1
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Owner
hereby appoints Manager as the manager for the Property as of the
Effective Date, and for the term stated in Section 1.2. Owner hereby
authorizes Manager to exercise such powers and to take such actions with
respect to the Property as may be necessary for the performance of
Manager's obligations under this Agreement. Manager hereby
accepts such appointment on the terms and conditions hereinafter set
forth.
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ARTICLE
III - LEASING
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3.1
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Intentionally
Deleted.
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3.2
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Intentionally
Deleted.
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3.3
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Intentionally
Deleted.
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ARTICLE
IV - DUTIES OF MANAGER
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4.1
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General
Duties. Manager, on behalf of Owner, shall use diligent
efforts to manage and operate the Property consistent with the
Approved Budget (as defined herein) and shall comply with Owner's
instructions as set forth herein or as may from time to time be
provided in writing by Owner to Manager. Manager shall perform
its services in a professional and diligent manner and shall manage,
operate, repair, maintain and service the Property consistent with
industry standards in the locale where the Property is
located. In connection therewith, Manager shall conduct the
ordinary and usual business affairs of Owner relating to the Property as
provided in this Agreement and shall implement, or cause to be
implemented, the Owner’s decisions. In particular, Manager
shall have the duties and obligations set forth hereafter in this Article
IV.
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4.2
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Utility
and Service Contracts. Manager shall negotiate contracts
on behalf of Owner for gas, electricity, water, telephone, trash
collection, sewer, elevator service, landscaping, janitorial service,
security service and such other services as are, or will be, furnished to
the Property for terms of not greater than one year, unless otherwise
approved by Owner. All such service contracts shall be entered
into by Manager for the account of and in the name of Owner and shall be
terminable on 30 days notice or less, unless otherwise approved by
Owner. The funds necessary to pay for such services shall be
paid from the Bank Account.
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4.3
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Employment
of Personnel. All persons employed in connection with
the operation and maintenance of the Property shall either be employees of
Manager or such vendors, consultants or independent contractors (including
any designated subsidiary or affiliate of Manager) as may be retained by
Manager and shall not be employees of Owner. Subject to
reimbursement pursuant to Section 9.1, Manager shall select, employ, pay,
supervise, direct and discharge all employees necessary for the operation
and maintenance of the Property, and shall use reasonable care in the
selection and supervision of such employees. Manager shall be
responsible for complying with all laws, regulations and collective
bargaining agreements affecting such employment, subject to limitations
imposed by Owner. Owner also agrees to become a member of the
Realty Advisory Board on Labor Relations (“RAB”) within thirty (30) days
from the date of this Agreement and remain a member for the term of this
agreement for the purpose of having the RAB represent Owner in any
collective bargaining contract negotiations or labor disputes with union
employees at the Property. Manager is and will continue
throughout the term of this Agreement to be an Equal Opportunity
Employer.
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4.4
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Maintenance
and Repairs.
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(a)
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Subject
to the Budget or Owner constraints, Manager shall perform or cause to be
performed under contract or agreement with contractors, subcontractors or
consultants, entered into in the name and on behalf of Owner, all ordinary
maintenance, repairs, alterations, replacements and installations, do all
decorating and landscaping, and purchase all supplies necessary for (i)
the proper operation of the Property, (ii) the fulfillment of Owner's
obligations under any lease of space in the Property, (iii) the
fulfillment of Owner’s obligations under any mortgage encumbering the
Property, provided Owner gives Manager written notice of such mortgage
obligations, and (iv) compliance with covenants, conditions and
restrictions affecting the Property, provided Owner gives Manager written
notice of such covenants, conditions and restrictions, and further
provided Manager shall not make any purchase or order any work costing
more than the limit on the amount authorized for non-emergency purchases
and repairs set forth in Section 1.3 without Owner's prior written
approval, except in circumstances reasonably deemed by Manager to be an
emergency requiring immediate action for the protection of the Property or
tenants or other persons or to avoid the suspension of necessary
services. Manager shall promptly notify Owner of the necessity
for, the nature of, and the cost of such emergency repairs or
compliance. Manager shall submit to Owner and maintain a list
of all contractors and subcontractors that perform any work, repairs,
alterations, replacements or services on the Property under Manager's
direction. All repairs, alterations and replacements shall
be of at least equal quality and workmanship to the original work, subject
to the requirements of the Approved Budget and Owner’s
authorization.
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(b)
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Subject
to the Budget or Owner constraints, Manager shall obtain all necessary
receipts, releases, waivers, discharges and assurances necessary to keep
the Property free of any mechanics', laborers', materials suppliers' or
vendors' liens in connection with work, materials or supplies for which
Manager contracts. All such documentation shall be in such form
as specified and required by Owner.
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4.5 Contracts
with Third Parties.
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(a)
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Manager
shall monitor all independent contractors, consultants, suppliers and
entities retained in Owner’s name by Manager for the operation, repair,
maintenance and servicing of the Property or for any other activity within
the scope of this Agreement. All of such contractors and the
contracts of their engagement shall be subject to Owner's specification
and prior written approval. Manager shall require that any
contractor performing work on the Property maintain insurance satisfactory
to Owner, as specified in Article 7.1. (e), including, but not limited to,
Workers' Compensation Insurance (and, when required by law, compulsory
Non-Occupational Disability Insurance) and insurance against liability for
injury to persons and property arising out of all such contractor's
presence upon the Property, operations and completed operations naming
Manager, Owner and Owner's Representative (if applicable) as additional
insureds. Manager shall obtain certificates of insurance for
all such insurance before the work begins. Manager shall furnish copies of
the certificates to Owner.
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(b)
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Manager
shall not execute, or otherwise enter into or bind Owner with respect to
any contract or agreement for equipment, supplies, services or any other
item where the aggregate amount of such contract is in excess of Five
Thousand Dollars ($5,000) without obtaining competitive written
bids. Manager shall not engage Owner in any contract or
agreement for more than the amount specified in Section 1.3 without
Owner’s prior written approval. All contracts, agreements or
other arrangements made pursuant to this Agreement shall be in the
name of Owner and, unless otherwise approved by Owner, shall be terminable
on 30 days' notice or less.
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4.6
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Purchase
of Supplies and Materials. Manager shall, in behalf of
Owner, purchase all equipment, tools, appliances, materials and supplies
reasonably necessary or desirable for the maintenance and operation of the
Property. All such purchases shall be subject to the prior
review and written approval of Owner if such purchases are not included in
the current Approved Budget. Contracts for all such purchases,
which are included in the Approved Budget or are otherwise approved by
Owner, shall be on purchase forms approved by Owner and shall be in the
name of the Owner. Such purchases shall be used solely in
connection with the operation and maintenance of the
Property. In connection with the performance of its duties
pursuant to this Section 4.6, Manager shall use its best efforts to
qualify for any cash and trade discounts, refunds, or credits and which,
if they are in the form of cash, shall be deposited in the Bank
Account. If Owner is entitled to discounts from contractors and
suppliers under any national or regional agreements, Manager shall avail
itself of such national or regional agreements whenever
possible. Notwithstanding the foregoing, Manager shall be
entitled to retain any transaction fees received from, and/or the benefit
of any equity interest held in, such suppliers provided that such fees or
equity interests do not result in any increased cost to Owner for such
supplies or materials.
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4.7
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Contracts
with Affiliated Entities. Manager may, upon prior
written notice to Owner, purchase materials, tools or supplies or contract
for repair, construction or any other service for the Property pursuant to
Sections 4.2, 4.3, 4.4 or 4.6 with a party in which Manager (or any
subsidiary, affiliate or related entity) holds a beneficial interest
provided that the pricing for such materials or services does not exceed
the cost of such materials or services commonly charged in the area where
the Property is located.
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4.8
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Complaints
and Notices.
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(a)
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Manager
shall promptly handle complaints and requests from tenants,
concessionaires and licensees and notify Owner of any major complaint made
by a tenant, concessionaire or licensee. Manager shall notify
Owner promptly of: (i) any notice received by Manager or known to Manager
of violation of any governmental requirements (and make recommendations
regarding compliance therewith); (ii) any notice received by Manager or
known to Manager of violation of covenants, conditions and restrictions
affecting the Property or noncompliance with loan documents affecting the
Property, if any; (iii) any fire, accident or other casualty or damage to
the Property; (iv) any condemnation proceedings, rezoning or
other governmental order, lawsuit or threat thereof involving the
Property known to Manager; (v) any violations relative to the leasing,
use, repair and maintenance of the Property under governmental laws,
rules, regulations, ordinances or like provisions known to
Manager; (vi) defaults under any leases or other agreements
affecting the Property; or (vii) any violation of any insurance
requirement. Manager shall promptly deliver to Owner copies of
any documentation in its possession relating to such
matters. Manager shall keep Owner reasonably informed of the
status of the particular matter through the final resolution
thereof. In the event Manager becomes aware of any fire or
other damage to the Property or violation or alleged violation of laws
respecting Hazardous Materials, Manager shall immediately give telephonic
notice thereof to Owner. Manager shall complete all necessary
and customary loss reports in connection with any fire or other damage to
the Property. Manager shall retain in the records it maintains
for the Property copies of all supporting documentation with
reference to such notices.
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(b)
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Manager
shall promptly notify Owner and any insurance agent Owner may designate of
any personal injury or property damage occurring to or claimed by any
tenant or third party on or with respect to the
Property. Manager shall promptly forward to Owner with copies
to any insurance agent Owner may designate any summons, subpoena or other
legal document served upon Manager relating to the actual or alleged
potential liability of Owner, of Manager or of the
Property.
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(c)
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Should
any claim, demand, suit or other legal proceeding be made or instituted by
any third party against Owner which arises out of any matters relating to
the Property, this Agreement or Manager's performance hereunder, Manager
shall give Owner all pertinent information, and reasonable assistance
subject to Section 6.2(g) below, in the defense or other disposition
thereof.
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4.9
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Tenant
Insurance Certificates. Manager shall use its best
efforts to obtain from all tenants certificates of insurance and renewals
thereof required to be furnished by the terms of their
leases. Manager shall forward copies of the certificates to
Owner for all renewals. Manager shall establish systems and
procedures to enforce lease requirements with regard to insurance
certificates.
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Page
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4.10
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Enforcement
of Leases and Deposit of
Revenue.
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(a)
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Manager
shall use reasonable and diligent efforts to enforce the terms of all
leases, concessions and licenses and to receive and collect all rents,
including percentage rents, and all other revenues payable to Owner from
the Property as the same become due and payable. Manager shall
deposit the rents and other revenues promptly into the Lockbox Account
(the Lockbox Account shall be controlled by Owner). Without in
any way limiting the foregoing if Manager receives any gross revenue from
the Property, then (i) such amounts shall not be commingled with any other
funds or property of Manager, and (ii) Manager shall deposit such amounts
in the Lockbox Account within one (1) Business Day of
receipt.
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(b)
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Funds
deposited into the Lockbox Account shall be applied and disbursed in
accordance with this Agreement.
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(c)
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The
Lockbox Account shall be used exclusively for such funds. Owner
may supply Manager with written instructions to notify promptly third
parties of such deposits, to enable transfer of Owner's monies to other
bank accounts. A Bank Account shall be opened by Owner and
shall name as signatories employees of Manager approved in writing by
Owner and such other persons as Owner may designate in
writing. All withdrawals from the Bank Account shall require
one signatures. Manager shall obtain Owner’s approval, via Manager’s
on-line document tracking and approval system, for any expenditures by
Manager in excess of $25,000. At Owner's option, and cost, the
Bank Account may be comprised of two accounts, a checking account in which
the funds on deposit shall be kept to the minimum practicable to pay
day-to-day expenses and a money market account or other interest bearing
account. Manager shall receive and collect all tenant security deposits
payable to Owner by tenants of the Property and deposit the same promptly
in the Bank Account. To the extent tenants are entitled to
interest on such security deposits or a refund of such deposits upon
vacating the Property, Manager shall pay such interest or refund such
deposits from the Bank Account to the tenants entitled
thereto. In the event state law requires that tenant security
deposits be held in a separate account, such separate account shall be
established by Owner. Checks drawn to refund security deposits
to tenants shall be drawn only upon the signatures of authorized employees
of the Manager and Owner. Manager shall cooperate with Owner to
satisfy such conditions as Owner may place on the release of a security
deposit from the Bank Account. Manager shall maintain detailed
records of all security deposits and allow Owner and its designee’s access
to such records.
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(d)
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Manager
shall, at Owner’s request and expense, engage counsel and cause legal
proceedings to be instituted as may be necessary to enforce payment of
rent and compliance with provisions of tenant leases, to dispossess
tenants, or to enforce the terms of vendor or subcontractor
contracts. Manager shall use Owner’s choice of legal counsel to
assist as deemed necessary by Owner in lease and/or contract preparation
and negotiation, to provide legal advice in connection with management
issues at the Property, and to institute legal proceedings. All
compromises, settlements, or legal proceedings shall be subject to the
prior approval of Owner. Attorneys’ fees and costs incurred in
any of the foregoing shall be expenses of the Property, and ultimately an
obligation of Owner. Owner and Manager shall agree upon a
reasonable projection for attorney's fees and costs in the Approved
Budget.
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4.11
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Special
Xxxxxxxx.
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(a)
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For
purposes of this Agreement, the term “Special Billing” is defined as any
periodic billing requirement or change in a billing rate charged to a
tenant under such tenant’s lease as a result of the Property’s operating
expenses, a tenant’s volume of business, or a CPI or other index,
including, but not limited to, such items as commonly are described as
expense pass throughs, recoveries, escalations, CAM or CPI adjustments,
and percentage sales or rent. Within ninety (90) days after the
commencement of this Agreement, subject to receiving the necessary
information from Owner, Manager shall deliver a statement to Owner
describing all of the information, data and documents received from Owner
or the prior property manager, which Manager has used to establish a basis
for calculation of Special Xxxxxxxx for each tenant at the Property. Owner
shall certify in writing that such information is accurate and complete or
provide written corrections or additions within thirty (30) days after
delivery of the statement to Owner; Owner’s failure to notify Manager in
writing of any corrections or additions within such thirty (30) day period
shall be deemed certification by Owner of the accuracy and completeness of
such information. During the term of this Agreement, Manager
shall be responsible for sending Special Xxxxxxxx to each tenant in
accordance with the terms of such tenant’s
lease.
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(b)
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Manager
may rely upon, and shall not be responsible for the completeness and
accuracy of, any information, data and documents received from the Owner
or the prior property manager, or generated prior to the commencement of
this Agreement, in connection with the performance of its duties and
obligations hereunder including, but not limited to, the preparation and
calculation of Special Xxxxxxxx. Manager shall not be
responsible for Special Xxxxxxxx, which either are due, or are based upon
expense activity, for (i) periods ending prior to the commencement of
Manager’s management of the Property, or (ii) periods ending subsequent to
the termination of Manager’s management of the Property under this
Agreement. Owner agrees to defend, indemnify and hold Manager
harmless from and against any and all claims, liabilities, demands,
damages, losses, attorneys’ fees, costs or expenses of any nature arising
out of, based upon, or related to such information, data and documents
received from Owner or the prior manager, or generated prior to the
commencement of this Agreement.
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4.12.
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Compliance
with Laws. Subject to the other provisions of this
Agreement, at Owner’s expense, Manager shall use reasonable efforts to
cause the Property to comply with federal, state and municipal laws, all
known ordinances, regulations and orders relative to the leasing, use,
operation, repair and maintenance of the Property and with the rules,
regulations or orders of the local Board of Fire Underwriters or other
similar body. Manager shall use reasonable efforts to remedy
the violation of any such law, ordinance, rule, regulation or order of
which it has actual knowledge and which violation occurs after the date
hereof, at Owner’s expense. Expenses incurred in so complying
and in correcting any such violation shall be included in the Approved
budget or otherwise approved in advance by Owner. At Owner’s
expense, and if requested in writing by Owner, Manager shall use
reasonable efforts to comply with all terms and conditions contained in
any ground lease, mortgage, deed of trust or other security instruments
affecting the Property of which Manager has actual knowledge, and for
remedying any breach thereof. Notwithstanding the foregoing,
however, Manager’s responsibilities under this Section shall not extend to
matters as to which the expenditure of Owner’s funds is required but
disapproved by Owner or such funds are not made available by
Owner.
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4.13
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Property
Review, Tax Review and Other
Programs.
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(a)
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Manager
shall cooperate with appraisers and consultants retained by Owner to
evaluate the Property or to appeal assessed values as part of Owner's tax
review program, but Manager shall not be responsible for such
undertakings. Manager, upon request from Owner, shall promptly
furnish Owner with copies of all assessment notices and receipted tax
bills.
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(b)
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Manager
shall comply with Owner's energy conservation and Hazardous Materials
policies and submit energy consumption and Hazardous Materials reports for
the Property in accordance with Owner's program for energy and Hazardous
Materials audits and reviews.
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4.14
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Licenses
and Authorizations.
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(a)
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Manager
shall obtain and keep in full force and effect all licenses, permits,
consents and authorizations as may be necessary for the maintenance,
operation, management, repair, servicing or occupancy of the
Property. All of such licenses, permits, consents and
authorizations shall be in the name of Owner, if required in writing by
Owner.
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(b)
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Manager
shall obtain and keep in full force and effect all real estate and
business licenses and governmental authorizations, at Owner’s expense,
(including qualifications to do business) as may be necessary for the
proper performance by Manager of its duties and obligations under this
Agreement. All such licenses and authorizations shall be in the
name of Manager.
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4.15
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Other
Duties. Subject to Budget and Owner constraints, Manager
shall, at Owner's expense, perform all other services, which are necessary
and appropriate to manage, operate and maintain the
Property.
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4.16
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Confidentiality. Manager
shall hold in confidence and not use or disclose to others any
confidential or proprietary information of Owner which is disclosed to
Manager, including but not limited to any data, information, plans,
programs, processes, costs, or operations of Owner, provided, however,
that Manager’s obligations hereunder shall not apply if such information
(a) is available to the general public or known within the real estate
industry, or (b) is required to be disclosed pursuant to law, court order
or subpoena.
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4.17
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Environmental
Risk Management. Owner acknowledges and understands that
Manager is not qualified to evaluate the presence or absence of hazardous
or toxic substances, mold, waste, materials, electromagnetic field, radon,
or radioactive materials upon, within, above, or beneath the Property;
compliance with environmental, hazardous or solid materials or waste laws,
rules and regulations; or the clean-up or remediation of hazardous
materials spills or contamination. Accordingly, notwithstanding
the provisions of Section 4.12 above, Manager’s obligations to Owner with
respect to the presence of hazardous or toxic substances, mold, waste
(including solid waste) gas, liquid or materials; electromagnetic field
and radon; lead; asbestos; or radioactive materials upon, within, above,
or beneath the Property (hereinafter collectively “Hazardous Materials”),
and/or with the compliance and enforcement of federal, state, and local
laws, rules, regulations, directives, ordinances, and requirements
relating to Hazardous Materials (hereinafter collectively “Hazardous
Materials Laws”) shall be subject to, conditioned upon, and limited by the
following:
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(a)
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To
the extent desired by Owner, Owner shall, at Owner’s sole discretion and
expense, obtain from an independent environmental consultant retained by
Owner, and acceptable to Manager, an environmental assessment report on
the Property, and shall have such assessment report periodically updated
by such environmental consultant based upon the consultant’s inspections
of the Property, including tenant spaces and tenants’ proposed and actual
uses of such spaces. The environmental assessment report and
all updates thereto shall be delivered to the Owner and the Manager, and
shall include evaluations by the consultant as to whether the Property or
any tenant’s space is in violation of any Hazardous Materials Laws or
whether the Property or any tenant’s space is one in which a specific
disclosure regarding Hazardous Materials must be
made.
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(b)
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In
no event will the Manager make an independent determination as to the
presence or absence of Hazardous Materials, or whether the Property or any
particular tenant space is in violation or compliance with any Hazardous
Materials Laws. The Manager’s sole responsibility shall be to
act, at the direction of the Owner’s environmental consultant, if any, and
the Owner, to (i) undertake, on the Owner’s behalf and at the Owner’s
expense, necessary actions for the Owner to comply with Hazardous
Materials Laws in accordance with the environmental recommendations
contained in the environmental assessment report, and/or (ii) seek, on the
Owner’s behalf and at the Owner’s expense, to enforce a tenant’s
compliance with any Hazardous Materials Laws in accordance with the
environmental consultant’s recommendations contained in the environmental
assessment report.
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(c)
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After
any action on behalf of the Owner has been taken by the Manager in
accordance with the recommendations contained in any environmental
assessment report, if any, and the directions of the Owner’s environmental
consultant and the Owner, the Owner’s environmental consultant shall
re-inspect to ensure that there has been full compliance with all
Hazardous Materials Laws. The Manager shall not, and shall have
no obligation to, determine whether or not the Owner, any tenants, the
Property, or any portion thereof is in compliance with Hazardous Materials
Laws.
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Page
9
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MANAGEMENT
AGREEMENT
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(d)
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The
Manager shall have absolutely no responsibility or obligation with respect
to the abatement, clean-up or remediation of any spill of or contamination
from any Hazardous Materials upon, beneath, or within all, or any portion,
of the Property, and the entire responsibility for such clean-up,
abatement, or remediation shall lie with the Owner and the Owner’s
environmental consultant. The Owner agrees that, with respect
to any abatement, clean-up or remedial action, the Owner shall employ a
qualified and licensed environmental clean-up company to undertake such
clean-up and remediation, and the Owner’s environmental consultant shall
oversee the entire abatement, clean-up and remediation process and the
obtaining of any required governmental approvals. If the
clean-up or remediation is the responsibility of any tenant of the
Property and/or the Owner’s environmental consultant, the Manager shall,
on the Owner’s behalf, require the tenant to utilize qualified and
licensed environmental clean-up companies and that the clean-up and
remediation is conducted to the Owner’s satisfaction and in accordance
with all Hazardous Materials Laws, governmental laws and approvals of
which Manager is aware.
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In
connection with the foregoing, Owner hereby agrees to and shall indemnify,
protect, defend, save, and hold harmless the Manager, its affiliates and each of
their respective officers, directors, representatives, agents, principals,
insurers and employees from any claim, cause of action, liability, loss, demand,
damages (including damages associated with any environmental law), fine,
penalty, injury, cost, or expense (including attorney’s fees and expenses)
arising out of or relating in any way to (i) the actions, or failure to act, by
the Manager in following Owner’s and the Owner’s environmental consultant’s
directions; (ii) the Owner’s failure or refusal to employ an environmental
consultant with respect to the Property (and in such event, Manager shall have
absolutely no responsibility or liability for enforcing compliance with
Hazardous Materials Laws at the Property, and Owner specifically releases
Manager therefrom); (iii) the failure of Owner to authorize and fully fund
expenses for the fulfillment of the recommendations contained in any
environmental assessment reports and any updates; (iv) the acts,
omissions, or negligence of the Owner, Owner’s environmental consultant, or the
failure of such environmental consultant, to fulfill its obligations with
respect to the Property; (v) any violation, or alleged violation, of all, or any
portion, of the Property with any Hazardous Materials Laws and/or Manager’s
efforts to enforce the Property’s compliance with such laws; and (vi) any
attempt by any person, group, entity, or governmental agency to designate
Manager as “operator” or “regulated facility” under the Resource
Conservation and Recovery Act (RCRA), or a Potentially Responsible Party
(PRP) under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), or
otherwise liable as a party under any other environmental law, or as a party in
any claim for contribution, cost recovery or indemnity against
Manager, or its insurer arising out of the foregoing.
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|
(e)
|
The
indemnities in Section 4.17(d) shall be immediately vested and shall
survive the expiration or termination of this
Agreement.
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4.18
|
Asbestos
and Similar Compliance Matters. If the Property are
subject to the Occupational Safety and Health Administration’s regulations
relating to asbestos, or to any state law or regulation relating to
asbestos, or to any state law or regulation relating to carcinogenic or
toxic chemicals. Manager shall, at Owner’s expense, comply with
such laws and regulations as they relate to the
Property.
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4.19
|
Force
Majeure; Cure Rights. The obligations of Owner and of
Manager under this Agreement (except the obligation of Owner to
provide funds to Manager for the timely payment of fees and expenses of
Manager and expenses of the Property to be paid by Manager on behalf of
Owner pursuant to this Agreement) shall be excused for that period of time
that Owner or Manager, as applicable, cannot fulfill such obligations by
reason of delays beyond its control, including without limitation acts of
God, inclement weather, war, insurrection, terrorists acts, labor strikes,
inability to obtain necessary materials or supplies, inability to obtain
necessary permits, licenses or approvals, or any other event commonly
included within the definition of force
majeure.
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Page
10
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MANAGEMENT
AGREEMENT
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ARTICLE
V - BUDGETS, REPORTS, AND OTHER FINANCIAL
MATTERS
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5.1
|
Budgets
and Business Plans. Manager shall prepare and submit to
Owner a proposed operating and capital budget (the "Budget") for the
operation, repair and maintenance of the Property annually and prior to
the Acquisition Date. Thereafter, on or before the date
specified each year by Owner (but not later than November 1st), Manager
shall prepare and submit to Owner an updated Budget for the remainder of
the current calendar year and a preliminary Budget for the next calendar
year followed by a final Budget for the next calendar year, incorporating
any changes requested by Owner. Such Budgets shall: (i) be
prepared on an accrual basis, as directed by Owner, and (ii) show a month
by month projection of income, expenses, capital expenditures, reserves,
and other non-recurring items. Owner shall notify Manager
within thirty (30) days after Owner’s receipt of the proposed Budget as to
whether Owner approves or disapproves the proposed Budget; if Owner fails
to notify Manager within thirty (30) days, then Manager shall notify Owner
in writing that Manager will operate off the prior year’s Budget unless
Owner approves or disapproves the proposed Budget within five (5) business
days of Manager’s delivery of such second notice. If Owner
fails to notify Manager within such five (5) business days, the prior
year’s Budget will be deemed approved by Owner (an expressly approved or
“deemed approved” Budget is referred to herein as the “Approved
Budget”). Manager shall implement the Approved Budget and use
its best efforts to ensure that the actual cost of operating the Property
shall not exceed the Approved Budget. The Approved Budget shall
constitute an authorization for Manager to expend necessary monies to
manage and operate the Property in accordance with the Approved Budget and
subject to the provisions of this Agreement until a subsequent Budget is
approved; the approval of non-recurring costs and capital improvements in
the Approved Budget shall constitute an authorization for Manager to
collect bids for the expenditure and present a final recommendation to
Owner for expenditure of monies to implement such items called for in the
Approved Budget. The Budget shall be subject to the reasonable
requirements of Owner’s lender(s) holding a lien on the
Property.
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5.2
|
Reports. (We
need to see the reports and attach a
list)
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(a)
|
Manager
shall, during the term of this Agreement, deliver monthly reports to Owner
relating to the management and operation of the Property for the preceding
calendar month, not later than five (5) business days after the end of the
preceding month. Manager will utilize an accounting software
application provided to Manager at Owner’s expense as directed by
Owner.
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(b)
|
Manager’s
accounting records and reports will be provided in Owner’s standard report
format as it may be revised from time to
time.
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5.3
|
Remittance
of Funds to Owner. No later than the 15th day of each
calendar month Manager shall remit to Owner all funds collected as part of
Manager's obligations hereunder in excess of (i) anticipated expenditures
for the calendar month that Manager is authorized to make pursuant to the
Approved Budget, (ii) any reserves approved by Owner and (iii) the
Management Fee payable pursuant to Section 9.1. Owner shall
have the right to require the transfer to Owner at any time of funds in
the Bank Account considered by Owner to be in excess of an amount
reasonably required by Manager for disbursement and compensation purposes
in connection with the operation and management of the
Property.
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Page
11
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MANAGEMENT
AGREEMENT
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5.4
|
Records. Manager
agrees to keep separate records, either paper or electronic, with respect
to the management and operation of the Property, and to retain those
records for periods specified by Owner. The accounting method
shall be on an accrual basis, unless Owner directs Manager to use a
different basis. Such books, records and accounts shall
include, without limitation, vouchers, statements, receipted bills and
invoices, employment records, documents, notices, agreements, contracts,
correspondence, leases, permits, licenses, authorizations, all collections
and disbursements related to the Property, the deposits to the Bank
Account and other business and affairs of the Property within the
responsibility of Manager pursuant to this Agreement. Owner
shall have the right, during the term of this Agreement, to inspect such
records and audit the reports required by Section 5.2 during normal
business hours without advance notice. All such records, data,
information and documents shall at all times be the property of Owner and
shall be delivered to Owner without demand upon termination of this
Agreement upon Manager’s receipt of a waiver and release of liability
signed by Owner.
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5.5
|
Duty
of Care. Manager shall exercise such control over
accounting and financial transactions as is reasonably required to protect
Owner's assets from loss or diminution due to error, negligence,
recklessness, willful misconduct, fraud or criminal acts on the part of
Manager or its agents, contractors, subcontractors, associates or
employees.
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5.6
|
Accounting
Services. Without limiting the generality of the
foregoing provisions of this Article V, Manager shall provide the standard
accounting services described in Exhibit “B”
attached.
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5.7.
|
Transaction
Fee: Owner shall pay an additional transactional
accounting fee of $1,500 in both the first and last months of the term of
this Agreement to cover supplemental accounting
services.
|
ARTICLE
VI - RESPONSIBILITIES OF OWNER
|
6.1
|
Documents
Provided by Owner. In order for Manager to set-up and
establish operations, Owner shall provide to Manager such information,
documents and certificates regarding the Property as Manager shall
reasonably request and as Owner has in its possession, including, but not
limited to, the following to the extent available and not already in
Manager’s possession:
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(a)
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A
current and complete rent roll.
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(b)
|
An
operating budget and capital budget for the past and current calendar
year.
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(c)
|
Income
cash flow report and variances from the budgets for the prior and current
calendar year.
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(d)
|
A
current list of brokers actively engaged in leasing the
Property.
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(e)
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Copies
of lease documents and correspondence related thereto for all leases
currently in force.
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(f)
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All
leases currently in dispute or
litigation.
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Page
12
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MANAGEMENT
AGREEMENT
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(g)
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All
files on any litigation and/or disputes regarding any and all matters,
including, but not limited to: equipment, furnishings, real property,
easements, taxes, third party contracts, employer-employee relations, and
the like.
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(h)
|
Legal
descriptions of the Property and any
improvements.
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(i)
|
Mortgagees’
names and addresses, lien holders, loan payment information and the
like.
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(j)
|
Site
plans and specifications.
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(k)
|
An
inventory of Owner’s personal property at the Property, including all
tools, equipment and supplies.
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(l)
|
A
list of all vendors.
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(m)
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All
pertinent books and records relating to the management, operation and
leasing of the Property.
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(n)
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All
third party contracts in force.
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(o)
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All
insurance policies on the Property and schedules of Owner’s current and
past insurance policies.
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(p)
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All
tenant and vendor insurance
certificates.
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(q)
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Procedures
for reporting claims and evaluating safety and loss prevention
conditions.
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(r)
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A
list of the historical common area maintenance charges and operating
expenses for the Property.
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The above
and any and all books and records are and shall remain the property of Owner but
shall be made available to Manager for its use and knowledge in assuming the
duties and responsibilities of Manager under this Agreement.
|
6.2
|
Owner’s
Obligations. Throughout the term of this Agreement,
Owner agrees to perform the
following:
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|
|
(a)
|
To
pay Manager for its services in the amounts and in the manner and at the
times described in Article X.
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(b)
|
To
promptly reimburse Manager, upon written demand, to the full extent of all
funds advanced by Manager for Owner’s account in carrying out the terms
and conditions of this Agreement.
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(c)
|
To
reimburse Manager for the cost for part-time manager (at a rate of $35,000
per year; $2,916.67 per month).
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(d)
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To
communicate with Manager through Manager’s assigned manager for the
Property at the property management
level.
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Page
13
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MANAGEMENT
AGREEMENT
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(e)
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To
maintain adequate funds in the Bank Account to fund all expenditures to be
made by Manager pursuant to the terms of this
Agreement.
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(f)
|
To
pay Manager for Manager’s time, excluding the time of Manager’s on-site
personnel whose costs are reimbursed under this Agreement, expended in
connection with any casualty, injury, lawsuit, claim, emergency service,
hearing, or any other proceeding relating to the Property at a reasonable
hourly rate. Furthermore, Owner shall pay Manager (excluding with respect
to services of this type performed by Manager’s on-site staff) the above
hourly fee in connection with any oversight services for insurance
administration or any special audit, accounting, reporting, or consulting
services, including coordinating or assisting in any sale, due diligence,
or exchange process relating to the Property, or any other special
services relating to the Property which Owner requests Manager to
perform.
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(g)
|
To
disclose promptly to Manager, upon Manager’s request, the property and
liability loss history of the Property as set forth in the records of the
Owner and Owner’s insurance
carriers.
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|
|
(h)
|
To
disclose promptly to Manager, in writing, any unresolved past or present
claims, conditions, or occurrences which may become future claims,
conditions, or occurrences which would not be covered by insurance
policies maintained by Owner, including those policies required to be
maintained by Owner under this
Agreement.
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|
(i)
|
To
promptly inform Manager in writing of the existence on the Property of any
structural defect which causes or threatens to cause a nuisance upon the
Property or adjacent properties or poses or threatens to pose any hazard
to the health or safety of any persons on or about the
Property. Owner further agrees to correct or otherwise repair,
at Owner’s sole expense, any such structural defect within a reasonable
time after informing Manager or being informed of the existence of any
such defect.
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(j)
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To
promptly inform Manager in writing of the existence on the Property of any
Hazardous Material, the presence of which
either:
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|
|
(i)
|
requires
investigation or remediation under any federal, state, or local laws,
rules, codes, statutes, regulations, orders, notices, determinations,
ordinances, or other requirements;
or
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(ii)
|
causes
or threatens to cause a nuisance upon the Property or adjacent properties
or poses or threatens to pose any hazard to the health and safety of any
persons on or about the Property.
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(k)
|
To
promptly take, at Owner’s sole expense, all measures, including without
limitation, the commission of inspections, tests, studies, and remediation
activities to insure that the Property complies with all federal, state,
or local laws, rules, codes, statutes, regulations, orders, notices,
determinations, ordinances, or any other requirements relating to any such
Hazardous Materials. Furthermore, Owner, at Owner’s sole
expense, shall obtain and maintain and require all contractors and
consultants to obtain and maintain liability insurance in an amount
sufficient to adequately insure against any identified or suspected
environmental hazard at the Property or any other hazards relating to any
such inspections, test, studies, and remediation
activities. All such liability policies shall name Manager as
an additional insured. Manager shall be entitled to receive
certified copies of all such policies upon
request.
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Page
14
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MANAGEMENT
AGREEMENT
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|
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(l)
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To
promptly comply with and abide by, at Owner’s sole expense, all laws,
rules, codes, statutes, regulations, orders, notices, determinations,
ordinances, and any other requirements of any federal, state, municipal or
other governmental authority, now in force or which may hereafter be in
force, relating to the Property.
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(m)
|
To
not make any payments, whether for commissions, bonuses or other reasons,
directly to employees.
|
ARTICLE
VII - INSURANCE
|
7.1
|
Insurance
Covering the Property and Its
Management.
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|
|
(a)
|
It
is the intention of the parties hereunder to secure the broadest and most
cost-effective insurance available to cover, defend and protect the Owner
and Manager in the operation, improvement and enhancement of the
Property. This has traditionally and customarily been
accomplished by insuring both principal parties under the same Owner’s
liability policies. Thus, Owner shall, at its sole expense,
maintain in full force and effect during the term of this Agreement (i)
“all risk” direct damage property insurance on replacement cost terms for
the full value of the structure and improvements, including builder’s risk
insurance and demolition, debris removal and increased cost coverage where
applicable, to cover physical loss or damage to the Property from fire and
extended coverage perils, including but not limited to vandalism and
malicious mischief; and (ii) comprehensive or commercial general liability
insurance, on an occurrence (not claims – made) form, in an amount not
less than $35,000,000
if in Manhattan each
occurrence with respect to the Property and covering third-party personal
injury, property damage, and bodily injury (including death). All primary
and excess policies providing the coverage of items (i) and (ii), above,
shall waive all the insurer’s right of subrogation against the Manager,
its employees, insurers, shareholders and authorized
agents. All primary and excess policies providing the coverage
of item (ii) above shall include Manager as insured by definition. Owner
shall furnish Manager original certificates of insurance, or if requested,
duplicate copies of policies evidencing that such insurance is in force as
of the date of this Agreement or such date as services are performed by
Manager, whichever is earlier. All such insurance shall be
placed with insurers authorized to do business in the state where the
property is located, having a rating of A-VIII or better as reported by
Best’s
Property
& Casualty Reports Key Rating Guide for the most current
reporting period. Such insurance shall in all respects be the
primary insurance for claims arising at or on the Property and any policy
of Manager shall be excess and non-contributing in all
respects. To the extent Owner’s property or liability policies
contain deductibles or self-insured retentions (SIR), same shall be the
sole responsibility of Owner for all claims arising at the property and
Owner will cover Manager as if the policies were written as first-dollar
insurance. To the extent that Owner or the Property has
insurance covering any actual or potential environmental liability at the
property, Owner shall undertake to have Manager added as an additional
insured to such policy(ies). All policies will provide Manager
with an unconditional right of 30 days’ prior written notice of the
insurer’s decision to cancel 10 days’ notice, if cancellation is for
non-payment of premium). All insurance obtained by Owner or
Manager shall be subject to the reasonable requirements of Owner’s
lender(s) holding a lien on the
Property.
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Page
15
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MANAGEMENT
AGREEMENT
|
|
|
(b)
|
If
it appears that Owner’s interests are better served by Manager’s
procurement of the insurance, and if requested in writing by Owner,
Manager shall procure such property and liability insurance for Owner, at
Owner’s sole expense, subject to Owner’s express approval thereof, with
both Owner and Manager covered as insureds under the insurance procured by
Manager.
|
|
|
(c)
|
Manager
shall use reasonable efforts at all times to comply with all warranties,
terms, and conditions of Owner’s insurance. Manager shall
notify Owner and Independent Insurance Advisors, Inc., c/o Xxxxxx Xxxxx,
00 X. Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
email: xxxxxx@xxxxx.xxx, facsimile: 000-000-0000 (
Owner’s designated Insurance advisor) within forty-eight (48) hours after
the Manager receives actual notice of any loss, damage, or injury, which
in Manager’s opinion may result in a claim under such insurance and shall
not take any action which knowingly might prejudice Owner in its defense
to any claim based on such loss, damage, or
injury.
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|
|
(d)
|
During
the term of this Agreement, Manager shall maintain the following insurance
for its business operations:
|
|
INSURANCE
|
LIMITS
|
|
Workers’
Compensation
And
Employers’ Liability
|
Coverage
A:
|
|
Limits
required by statute in the state where the property is located and where
any operations relating to this agreement are
performed.
|
|
|
Coverage
B:
$500,000
Bodily Injury by Accident (Each Accident)
$500,000
Bodily Injury by Disease (Policy Limit)
$500,000
Bodily Injury by Disease (Each
Employee)
|
|
|
Commercial
General
Liability Insurance*
|
$1,000,000
per occurrence/ $2,000,000 aggregate
|
|
Automobile
(Single Limit
Bodily
Injury and Property Damage)
|
$1,000,000
Any Auto/Accident (hired/owned and non-owned)
|
|
Professional
Liability Insurance
|
$1,000,000
each loss and annually in the aggregate (claims made
form).
|
|
Fidelity
/Crime
|
The
total sum of two (2) months’ gross income from the
Property
|
Page
16
|
MANAGEMENT
AGREEMENT
|
|
|
*
If Manager is requested by Owner to procure Commercial General Liability
Insurance for Owner as noted in 7.1 (b), above, Manager shall cause that
policy to be endorsed to be primary and non-contributing with any other
insurance maintained by Manager in connection with this schedule of
“Manager’s Insurance.”
|
|
|
Upon
written request, Manager shall furnish Owner, at the time of execution of
this Agreement, certificates of insurance evidencing the insurance
coverage required under this Section (d). Such certificates shall be
issued by the insurer(s) or its authorized agent(s) and shall provide that
Owner will be given thirty (30) days prior written notice of cancellation
in Manager’s coverage by underwriters or 10 days’ notice if cancelled for
non-payment of premium. All such policies of Manager, except
for workers’ compensation for Manager’s employees directly involved with
the operation of the Property (as listed in Exhibit A) shall be at
Manager’s sole cost. Manager may maintain such coverage through
the use of “blanket coverage.” In cases where Owner and Manager maintain
insurance policies that duplicate coverage for the Property, then Owner’s
policies shall provide in all respects primary coverage, without regard to
any “other insurance” clauses, and Manager’s insurance shall be excess and
noncontributing insurance. The addition of Owner as an additional insured
under any of Manager’s insurance policies shall not obligate Manager to
provide Owner a defense or indemnity for claims not covered under any such
policy or covered under a policy required to be maintained by
Owner.
|
|
|
(e)
|
Contractors’
and Subcontractors’ Insurance. Manager shall require
that each contractor and subcontractor hired to perform work at the
Property maintain liability insurance against risk of bodily injury,
personal injury, and damage to property of others, and direct damage
insurance covering physical damage to personal property belonging or
leased or rented to it with terms and in amounts sufficient to pay all
incurred liabilities and claim expenses and to replace such personal
property in the event of loss, at such contractor’s and subcontractor’s
sole cost and expense. It is understood and agreed by Owner and
Manager that, during periods and under circumstances of limited
availability and/or competition in the insurance industry, (sometimes
known as a “hard insurance market”) some of the desirable terms will not
be available to otherwise acceptable vendors and
contractors. It is Manager’s practice to require these terms
within the contracts, subcontracts, work orders and purchase orders, and
not to alter the terms of such documents, but to grant de facto waivers
when the terms cannot be obtained. Manager’s objective is to
retain the requirements for these coverage extensions within the contract
in order to trigger their benefit when such terms again become
available. Manager will continue this practice for the benefit
of Owner, provided Owner agrees that it will not hold Manager liable for
any shortfall in the coverage terms of such contractors, subcontractors or
vendors. With that understanding, Manager shall require from
contractors, subcontractors and vendors the following insurance, in the
following minimum amounts:
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Page
17
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MANAGEMENT
AGREEMENT
|
| INSURANCE | MINIMUM LIMITS |
|
Workers’
Compensation
|
As
required by law in the state where property is located and where any
operations relating to the contract are located, with waiver of
subrogation against Owner and Manager.
|
| Employer’s Liability | $1,000,000 each accident and as to aggregate limits. |
| Commercial General Liability* | $1,000,000 per occurrence/$2,000,000 aggregate |
| Comprehensive Auto Liability* | $1,000,000 (any auto/owned/non-owned/hired) |
|
|
*These
coverages shall be primary as to Owner and Manager and will cover Owner
and Manager as insureds for any allegation, claim, loss, damage, demand,
or judgment, or other causes of action arising out of their presence or
out of the contractors’ or subcontractor’s presence upon or out of
operations or operations or work done at the Property by the contractor or
subcontractor for or on behalf of Owner and Manager. Owner and
Manager shall be named as additional insureds on such all general
liability policies both for operations and, to the extent available in the
insurance market, for completed operations of the named insured for as
long as Owner or Manager may be exposed to loss arising out of such
operations. The policies shall be written on an “occurrence”
and not “claims-made” form basis. If contractor’s work involves hazardous
materials or environmental abatement work, contractor will be required to
provide evidence of Contractor’s Pollution Liability, with Owner and
Manager as additional insureds. If the contractor’s work
involves professional design or engineering, special evidence of design
professional liability (also known as E&O) coverage will also be
required.
|
|
|
Owner
or Manager may require additional coverage if the work to be performed is,
in their judgment, sufficiently large or hazardous and may waive certain
limits or requirements on a case-by-case basis for incidental or personal
service contracts or jobs. Before any work can begin, each contractor or
subcontractor will submit Certificates of Insurance and endorsements in
form and substance satisfactory to Owner or Manager as evidence of the
coverages required. Each liability policy certificate will
provide for (i) cross-liability or severability of interests, covering the
named insured for any claim brought against it by any of the Additional
Insureds; (ii) waiver of subrogation as against Owner and
Manager and waiver of any right of contribution from their respective
insurers; and (iii) if Contractor’s insurance is provided by means of a
so-called “blanket policy,” the aggregate must apply per project, or per
location. Each certificate will bear an endorsement requiring
thirty (30) days’ prior written notice of cancellation, material
alteration, or non-renewal. All such policies shall be issued
by insurers with a Best’s
rating of A-VIII or higher as reported in the most recent Property
& Casualty Reports Key Rating Guide
edition.
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Page
18
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MANAGEMENT
AGREEMENT
|
ARTICLE
VIII - INDEMNIFICATION AND SUBROGATION
|
8.1
|
Indemnification.
|
|
|
(a)
|
Subject
to Section 8.2, Owner shall indemnify, defend (using counsel acceptable to
Manager) and hold harmless Manager and its affiliates and each of their
respective officers, directors, employees, stockholders, partners, agents,
lenders, representatives, and contractors, and each of their respective
successors and assigns, from and against any and all liabilities,
obligations, claims, losses, causes of action, suits, proceedings, awards,
judgments, settlements, demands, damages, costs, expenses, fines,
penalties, deficiencies, taxes and fees, (including without limitation the
fees, expenses, disbursements and investigation costs of attorneys and
consultants) arising directly or indirectly out of or resulting in any way
from or in connection with the Property, the management of the Property by
the Manager, or the performance or exercise by the Manager of the duties,
obligations, powers, or authorities herein, or hereafter granted to the
Manager, except for those actions and omissions of Manager in relation to
which the Manager agrees to indemnify Owner pursuant to Section
8.1(b).
|
|
|
(b)
|
Subject
to Section 8.2, Manager agrees to indemnify and hold the Owner and its
affiliates and each of their respective employees, officers, directors,
and agents harmless from and against any and all costs, expenses,
attorneys’ fees, suits, liabilities, damages, or claim for damages, in any
way arising out of (i) any acts or omissions of Manager, its agents or
employees which have been held to be grossly negligent and are not
otherwise insured under property or liability policies, including
deductibles and retentions, required to be maintained by Owner under this
agreement; (ii) any failure of Manager to promptly perform in any material
respect any of its obligations under this Agreement, to the extent the
loss is not otherwise insured under property or liability policies,
including deductibles and retentions, requires to be maintained by Owner
under this agreement or provided such failure was not caused by Owner or
by events beyond the reasonable control of Manager, and Owner has
furnished to Manager sufficient funds to perform such obligations; or
(iii) any acts of Manager beyond the scope of Manager’s authority
hereunder. However, it is agreed that, under no circumstances
shall Manager be held liable to the Owner or to any other party for loss
or damage arising out of alleged or actual terrorists
acts.
|
|
|
(c)
|
“Indemnified
Party” and “Indemnitor” shall mean the Manager and Owner, respectively, as
to Section 8.1(a) and shall mean the Owner and Manager, respectively, as
to Section 8.1(b). If any action or proceeding is brought
against the Indemnified Party with respect to which indemnity may be
sought under this Section 8.1, the Indemnitor, upon written notice from
the Indemnified Party, shall assume the investigation and defense thereof,
including the employment of counsel and payment of all reasonable
expenses. The Indemnified Party shall have the right to employ
separate counsel in any such action or proceeding and to participate in
the defense thereof, but the Indemnitor shall not be required to pay the
fees and expenses of such separate counsel, unless such separate counsel
is employed with the written approval and consent of the
Indemnitor.
|
|
|
(d)
|
The
indemnities in this Section 8.1 shall survive the expiration or
termination of this Agreement.
|
Page
19
|
MANAGEMENT
AGREEMENT
|
|
8.2
|
Waiver
of Claims.
|
|
|
(a)
|
Anything
in this Agreement to the contrary notwithstanding, Owner and Manager
hereby waive and release each other of, and from, any and all right of
recovery, claim, action, or cause of action against each other, their
agents, officers, and employees, for any loss or damage that may occur to
the property, improvements to the Property, or personal property within
the Property, by reason of fire or the elements, or other casualty or
insured peril, regardless of cause or origin, including negligence of
Owner or Manager and their agents, officers, and employees, to the extent
the same is to be insured against under insurance policies carried by
Owner or Manager (or required to be carried by Owner or Manager
hereunder), including any deductibles or self-insured
retentions. Owner and Manager agree to obtain a waiver of
subrogation from the respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss and to
have the insurance policies endorsed, if necessary, to prevent the
invalidation of the insurance coverages by reason of the mutual
waivers.
|
|
|
(b)
|
For
the purposes of Section 8.1(b), 8.1(c), and 8.2, the term “Owner” shall be
construed as meaning Owner, Owner's Representative, Asset Manager, and
their respective affiliates, directors, officers, employees, agents, and
representatives.
|
ARTICLE
IX - COSTS AND EXPENSES
|
9.1
|
Costs
and Expenses of Manager. Except as otherwise expressly
provided herein, all costs and expenses incurred by or on behalf of
Manager in performing its obligations hereunder shall be borne solely
by Manager, including, without limitation, the following expenses or
costs in connection with the operation and management of the
Property:
|
|
|
(a)
|
Cost
of gross salary and wages, payroll taxes, insurance, worker's
compensation, pension benefits and any other benefits of Manager's
supervisory and home and regional office
personnel;
|
|
|
(b)
|
Standard
accounting and reporting services, as described under Exhibit B, as such
services are considered to be within the reasonable scope of Manager's
responsibilities to Owner, and except for such services as are provided by
persons for whom Manager is reimbursed pursuant to Section
9.2(a);
|
|
|
(c)
|
Cost
of forms, stationery, ledgers and other supplies and equipment used in
Manager's home office or regional home office, except for such items as
are specifically required for, or proprietary to, the
Property;
|
|
|
(d)
|
Cost
or pro rata cost of telephone and general office expenses incurred on the
Property by Manager for the operation and management of properties other
than the Property;
|
|
|
(e)
|
Cost
or pro rata cost of data-processing equipment, whether located at the
Manager's home or regional office;
|
|
|
(f)
|
Cost
or pro rata cost of data processing provided by computer service companies
not performed for the property;
|
Page
20
|
MANAGEMENT
AGREEMENT
|
|
|
(g)
|
Cost
of all bonuses, incentive compensation, profit sharing or any pay
advances to employees employed by Manager in connection with the
operation and management of the Property, except for payments to
individuals specifically approved in writing by Owner in advance; or in
the annual budget.
|
|
|
(h)
|
Cost
of automobile purchases and/or rentals, unless the automobile is being
provided by Owner;
|
|
|
(i)
|
Costs
attributable to claims, losses and liabilities arising from (i) any breach
of this Agreement by Manager or (ii) the negligence, recklessness, willful
misconduct, fraud or criminal acts of Manager's employees, agents,
contractors, subcontractors or
associates;
|
|
|
(j)
|
Cost
of comprehensive crime insurance purchased by Manager for its own
account;
|
|
|
(k)
|
Costs
for meals, travel and hotel accommodations for Manager's home or regional
office personnel who travel to and from the Property, unless expressly
authorized by Owner.
|
|
9.2
|
Reimbursement
by Owner. The following expenses or costs incurred by or
on behalf of Manager in connection with the operation and management of
the Property shall be reimbursable either bi-weekly (for payroll and
personnel expenditures) or monthly (for all other property expenditures)
by Owner by disbursement from the Bank Account to the extent they are
within the Approved Budget or approved in writing by Owner and are
supported by proper documentation from
Manager:
|
|
|
(a)
|
Intentionally
Omitted;
|
|
|
(b)
|
Cost
of Worker’s Compensation Insurance (and, when required by law, compulsory
Non-Occupational Disability Insurance) incurred pursuant to Section
4.3;
|
|
|
(c)
|
Cost
of telecommunications, including network or Internet connectivity and
maintenance, computer hardware, software and maintenance; or other
financial support services related to the preparation and performance of
Property related financial or service requirements; and office supplies,
postage, copier, facsimile machine, courier services, lock box and other
banking services and local business and license
fees.
|
|
9.3
|
Payment
of Other Costs. Manager may make the expenditures set
forth in the Approved Budget from the Bank Account, provided that Manager
shall not issue a check for any purchase or work in excess of the limit on
the amount authorized for non-emergency purchases and repairs in Section
1.4 without Owner's approval except in emergencies as authorized in
Section 4.4.
|
|
9.4
|
Payment
of Certain Charges Affecting the Property. Manager shall
pay all taxes and special assessments affecting the Property as they
become due and before any delinquency date. Owner shall pay all
insurance premiums and mortgage payments affecting the Property, except
that Owner reserves the right, at its option, to give written instructions
to Manager to make any such payments from the Bank
Account.
|
|
9.5
|
Insufficient
Funds in Bank Account. Manager shall not be required to
expend any of its own funds for disbursements chargeable to
Owner. If there are insufficient funds in the Bank Account for
a disbursement, Manager may, after notifying Owner of such insufficiency
in writing, defer making any disbursement until Owner has furnished the
funds necessary for such
disbursement.
|
Page
21
|
MANAGEMENT
AGREEMENT
|
|
9.6
|
Nonpayment. If
Manager fails to make any payment when required or fails to perform any
act required under this Agreement, then Owner, after 10 days' written
notice to Manager (or, in the case of any emergency, without notice) and
without waiving or releasing Manager from any of its obligations
hereunder, may (but shall not be required to) make such payment or perform
such act. Owner shall have (in addition to any other right or
remedy) the right to offset all costs and expenses incurred in exercising
its rights under this Section 9.5 against any sums due or to become due to
Manager, including, without limitation, the Management Fee and any costs
and expenses reimbursable by Owner pursuant to Section
9.1.
|
ARTICLE
X - COMPENSATION
|
10.1
|
Management
Fee. Owner shall pay Manager as compensation for the
management services rendered hereunder a management fee (the "Management
Fee") at the rate specified in Section 1.7. Such Management Fee
shall be payable during the month earned. Manager shall
withdraw such Management Fee from the Bank Account and shall account for
it as required by Section 5.3. In the event the Owner fails to
pay Manager (or fails to make fund available to Manager in the Bank
Account to pay Manager) the Management Fee or any reimbursement provided
for in this Agreement within forty (40) days of the date due, Manager
shall give Owner written notice of the expiration of such forty (40) day
period and if Owner has not paid Manager or made funds available in the
Bank Account to pay Manager within five (5) days of delivery of such
written notice to Owner, the Owner will be charged a one (1%) percent late
processing fee.
|
|
10.2
|
Construction
Management Services. Owner shall pay Manager as
compensation for any construction management or capital improvement
services requested by Owner a fee as set forth in the attached
Construction Management Addendum (Exhibit C). If Manager is not
paid for construction management services, Manager shall have no
obligation to supervise, bid Capital or Tenant Improvement work, collect
lien releases, or to obtain certificates of insurance from General and/or
Subcontractors.
|
ARTICLE
XI - TERMINATION
|
11.1
|
Termination
of Agreement. This Agreement may be terminated prior to
the expiration of the initial term or of any renewal term, as the case may
be, on the following terms and conditions, it being understood and agreed,
however, that termination shall relieve neither Owner nor Manager from
liabilities or claims accruing and arising up to and including the date of
termination:
|
|
|
(a)
|
Owner
shall have the right to terminate this Agreement in the event that Manager
fails in any material respect to keep, observe or perform any covenant,
agreement, term or provision of this Agreement, to be kept, observed, or
performed by Manager, and such default continues for a period of fifteen
(15) days after written notice thereof by Owner to
Manager.
|
|
|
(b)
|
In
the event that the Property is sold to a party which is not affiliated
with Owner, Owner shall have the right to terminate this Agreement with
thirty (30) days’ prior written notice to
Manager.
|
Page
22
|
MANAGEMENT
AGREEMENT
|
|
|
(c)
|
Owner
shall have the right to terminate this Agreement if a petition for
bankruptcy, reorganization or rearrangement is filed under any federal or
state bankruptcy or insolvency laws by Manager, or if any such petition is
filed against Manager and not removed or discharged within sixty (60) days
thereafter.
|
|
|
(d)
|
Manager
shall have the right to terminate this Agreement in the event Owner fails
in any material respect to keep observe or perform any covenant,
agreement, term or provision of this Agreement to be kept observed, or
performed by Owner and such default continues for a period of fifteen (15)
days after written notice thereof by Manager to Owner, or if Owner
materially fails to comply with any law, regulation or ordinance relating
to or affecting Owner’s ownership of the
Property.
|
|
|
(e)
|
If
any building on the Property is destroyed and Owner, for any reason,
elects not to rebuild the building, then this Agreement shall terminate as
of the date of notice to Manager that Owner has elected not to rebuild the
building after such destruction.
|
|
|
(f)
|
In
the event there is a condemnation of all or any substantial part of the
Property, then this Agreement shall automatically terminate as of the date
of such taking.
|
|
|
(g)
|
Owner
or Manager may terminate this Agreement without cause at any time by
providing the other with 60 days’ prior written
notice.
|
|
11.2
|
Non-Solicitation. If
this Agreement is terminated pursuant to Sections 11.1(b), 11.1(d) or
11.1(g), then Owner and, with respect to Section 11.1(b), any purchaser of
the Property, may not, directly or indirectly, for a period of one year
following the date of termination, employ or solicit for employment any of
Manager’s employees with whom Owner had contact in connection with this
Agreement prior to the date of termination. Owner acknowledges and agrees
that a breach of the provisions of this Section 11.2 could not adequately
be compensated by money damages, and, therefore, Manager shall be
entitled, in addition to any other right and remedy available to it, to an
injunction restraining any breach or threatened breach, and Manager shall
not be required to post a bond in any proceeding brought for such
purpose. Owner further acknowledges and agrees that the
provisions of this Section 11.2 are necessary and reasonable to protect
Manager in the conduct of its business. Nothing herein shall be
construed as prohibiting Manager from pursuing any other remedies, at law
or in equity, for any such breach or threatened
breach.
|
ARTICLE
XII - MISCELLANEOUS
|
12.1
|
Status
of Manager. It is the intention of the parties to create
a relationship wherein Manager is an agent in the management, operation
and maintenance of the Property. Nothing herein contained shall
be construed as creating the relationship of employer-employee or
establishing any partnership or joint venture arrangement between Owner
and Manager.
|
|
12.2
|
Notices. Any
statement, notice, recommendation, request, demand, consent or approval
under this Agreement must be in writing and personally delivered or sent
by overnight courier service, or sent by United States registered or
certified mail, postage prepaid, return receipt requested, and shall be
deemed to have been given upon the date of personal delivery or the next
business day following deposit with an overnight courier or five days
after deposit in the United States mail, provided that in the case of
communications sent by overnight courier service or United States
registered or certified mail, the communication is addressed as set forth
in Section 1.5 if sent to the Owner and as set forth in Section 1.6 if
sent to Manager. Either party may, by written notice, designate
a different address.
|
Page
23
|
MANAGEMENT
AGREEMENT
|
|
12.3
|
Ownership
of Fixtures and Personal Property. Manager acknowledges
that Owner owns all fixtures and personal property situated on or about
the Property and used in or necessary for the operation, maintenance and
occupancy of the Property (including, without limitation, any personal
property purchased by Manager pursuant to Section 4.6), except for such
items as are purchased by Manager out of its own funds and for which it is
not reimbursed by Owner.
|
|
12.4
|
Assignment. This
Agreement shall not be assignable by Manager without the express prior
written consent of Owner, except that Manager may assign this Agreement
without such consent to an affiliate of Manager pursuant to a merger or
reorganization of its parent company, or any subsidiary of the parent or
Manager. This Agreement shall be for the benefit of and shall
be binding upon the heirs, successors and assigns of the parties
hereto.
|
|
12.5
|
Severability. Each
provision of this Agreement is intended to be severable. If any
term or provision hereof or the application thereof to any entity or
circumstance shall be determined by a court of competent jurisdiction to
be illegal or unenforceable for any reason whatsoever, such term,
provision or application thereof shall be severed from this Agreement and
shall not affect the validity of the remainder of this Agreement or the
application of such term or provision to any other entity or
circumstance.
|
|
12.6
|
Costs
of Suit. If Owner or Manager shall institute any action
or proceeding against the other relating to this Agreement, the
unsuccessful party shall reimburse the successful party for its
disbursements incurred in connection therewith and for its reasonable
attorneys' fees, as fixed by the
court.
|
|
12.7
|
Waiver. No
consent or waiver, express or implied, by either party to or of any breach
or default by the other party in the performance of its obligations
hereunder, shall be valid unless in writing. No such
consent or waiver shall be deemed or construed to be a consent or waiver
to or of any other breach or default in the performance by such other
party of any other obligations of such party hereunder. The
failure of any party to declare the other party in default shall not
constitute a waiver by such party of its rights hereunder, irrespective of
how long such failure continues. The granting of any consent or
approval in any one instance by or on behalf of Owner shall not be
construed to waive or limit the need for such consent in any other or
subsequent instance.
|
|
12.8
|
Remedies
Cumulative. No remedy herein contained or otherwise
conferred upon or reserved to Owner shall be considered exclusive of any
other remedy, but such remedy shall be cumulative and in addition to every
other remedy given hereunder or now or hereafter existing at law, in
equity or by statute. Every power and remedy given by this
Agreement to Owner may be exercised from time to time and as often as
occasion may arise or as may be deemed
expedient.
|
|
12.9
|
Entire
Agreement. This Agreement contains the entire agreement
between the parties and supersedes all prior oral or written agreements,
understandings, representations and covenants, to the extent that they are
inconsistent with this
Agreement.
|
Page
24
|
MANAGEMENT
AGREEMENT
|
|
12.10
|
Amendment. This
Agreement may not be amended or modified except by an agreement in writing
signed by the party against whom enforcement of such change or
modification is sought.
|
|
12.11
|
Governing
Law. This Agreement and the obligations of Owner and
Manager shall be governed by, and construed and enforced in accordance
with, the laws of the state where the Property is
located.
|
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
Owner: ARC NYRR
00xx Xxxxxx
LLC
a Delaware limited liability company
By:
Print
Name:
Its
|
Manager:
CB
XXXXXXX XXXXX, INC.,
a Delaware corporation
By:
Print
Name:
Its
|
Page
25
|
MANAGEMENT
AGREEMENT
|
EXHIBIT
A
SCHEDULE
OF EMPLOYEES
This
Exhibit A is attached to and made a part of that certain Real Estate Property
Management Agreement (the "Agreement") dated as of
executed between
("Owner"), and CB Xxxxxxx Xxxxx, Inc. ("Manager").
This
schedule is to be updated and submitted for Owner's approval pursuant to Section
4.3 of the Management Agreement prior to employment of personnel for
Property.
(By
Job Category and Wages)
Indicate by
underlining all employees previously approved.
|
Job
Title
|
No.
of
Employees
|
Maximum
Wage/Wk.1
|
Fringe
Benefits
|
No.
of
Hrs. Wk.
|
Total
$
Amt.
Wk
|
|
Total
$ Per Month
Total $ Per Annum
|
$ TBD as
per Budget
$ TBD as per
Budget
|
-26-
|
MANAGEMENT
AGREEMENT
|
EXHIBIT
B
ACCOUNTING
SERVICES
Standard
Reporting
Manager
shall keep and maintain, or shall cause to be kept and maintained on a
Fiscal/Calendar Year (as previously defined) proper and accurate books, records
and accounts reflecting all of the financial affairs of the property transacted
by Manager within an accounting system directed by Owner. Owner shall
have the right at all times during normal business hours to examine such books
and accounts at the office of the Manager’s accounting department and to make
such copies or extracts thereof as Owner shall desire.
Manager’s
accounting records and reports will be provided in Owner’s standard report
format. Manager shall prepare and submit the following reports and
statements, which reports shall (i) be on an accrual basis unless Owner directs
Manager to use a different basis and, (ii) be prepared on the Owner’s MRI
Platform, or other system used by Owner.
On a
monthly basis, the Manager will furnish a report summarizing the financial
operations of the Property (“Financial Report”). This report will be
due to the owner on the 5th
Business Day of the month and will include operations for the previous month
end. The Financial Report will include the following:
|
(a)
|
Balance
Sheet and Reconcilliation of Assets and
Liabilities
|
|
(b)
|
Actual
vs. Prior Month Operating Statement
|
|
(c)
|
Actual
vs. Budget Operating Statement
|
|
(d)
|
Accounts
Receivable Aging Report and report of follow-up with tenants and action
items for all past due receivables
|
|
(e)
|
Rent
Roll
|
|
(f)
|
Cash
Receipts Detail
|
|
(g)
|
Cash
Disbursement Detail
|
|
(h)
|
Security
Deposit Ledger
|
|
(i)
|
Current
Month General Ledger
|
|
(j)
|
Current
Month Bank Reconciliation
|
|
(k)
|
Lock
box and other banking services
|
|
(l)
|
Monthly
Closing Process and Procedures provided by
Owner
|
|
(m)
|
Year
end and/or periodic Tenant CAM
Reconciliation/True-Ups
|
|
(n)
|
SAS-70
Report Annually
|
Non-standard
Accounting Services
If Owner
requests Manager to perform accounting services in addition to the standard
services provided by the Manager, there shall be an additional
charge. The cost shall be mutually agreed upon in writing prior to
the delivery of these additional services. The following are examples
of additional services/reporting information that would necessitate an
additional charge to the Owner:
-27-
|
MANAGEMENT
AGREEMENT
|
|
(a)
|
Issuance
of specially formatted or non-standard reports in place of or in addition
to standard reporting.
|
|
(b)
|
Management
of negative cash flow for the
property.
|
|
(c)
|
Management
of manual check signing process or owner co-signature requirements instead
of our standard facsimile signature cartridge. Checks will be
signed on facsimile signature, but will be signed manually if this feature
is not in place at the commencement of this
Agreement.
|
|
(d)
|
Accounting
for acquisition or disposition related activity in addition to standard
monthly operating activity. This might include accounting for
prior Owner’s receivables, or post closing
pro-rations.
|
|
(e)
|
Management
of loan funding process with Owner and
lender.
|
|
(f)
|
Maintenance
of detailed fixed asset sub-ledgers and corresponding depreciation and
amortization schedules.
|
|
(g)
|
Maintenance
of “Ownership level” or Joint Venture transactions of the property books
and records.
|
-28-
|
MANAGEMENT
AGREEMENT
|
EXHIBIT
C
CONSTRUCTION
MANAGEMENT ADDENDUM
THIS
ADDENDUM APPLIES ONLY IF IT IS SEPARATELY SIGNED BY OWNER AND
MANAGER
THIS
ADDENDUM is attached to and is a part of a Real Estate Property Management
Agreement dated as of between
("Owner"), and CB Xxxxxxx Xxxxx, Inc. ("Manager").
|
1.
|
Construction
Management Fee: In addition to the Management Fee,
Manager shall be entitled to a construction management fee for the
construction management services described in Section 3 of this
Addendum. The fee shall be a percentage of the cost of
construction as outlined in Section 2 of this Addendum, payable 100% upon
completion, or periodically based upon percentage of completion, as the
parties may agree. As used herein, “cost of construction” shall
include: all labor and supervision costs; costs of materials
and supplies; contract price for all construction work performed by
general contractors and subcontractors; fees, taxes or other charges
levied by governmental or quasi-governmental agencies in connection with
the issuance of all authorizations, approvals, licenses and permits
necessary to undertake construction of the project; cost of all equipment
and fixtures provided for in drawings and specifications; concrete,
welding and other testing expenses; and, all architectural and engineering
fees or costs.
|
|
2.
|
Construction
Management Fee Schedule:
|
| Construction Cost | Fee - % of Construction Cost |
| $0 – $25,0000 |
No
Cost
|
| $50,001 – $200,000 |
5%
|
| $200,001 - $400,000 |
4%
|
| $400,001 - $600,000 |
3%
|
| Greater than $600,000 |
By
Negotiation
|
|
3.
|
Description
of Construction Management Services. Construction
management shall consist of coordinating, overseeing and expediting the
completion of tenant improvements and other capital construction, and
shall include, but not be limited to, the
following:
|
Project
Team Composition & Pre-Construction Activities
|
|
a.
|
Discuss
Strategy for Team Composition with Client and Leasing
Team
|
|
|
b.
|
Assist
Leasing Team in conceptual budgets for
Prospects
|
|
|
c.
|
Research
existing vendors and perform pre-qualifications, (RFQ’s), for
recommendation to Client
|
|
|
d.
|
Recommend
specialized team members in required
disciplines
|
|
|
e.
|
Issue
Requests for Proposals (RFP’s) to Architects, Engineers, and other
Specialty Contractors as required by
project/Client
|
|
|
f.
|
Receive
and analyze RFP responses and submit recommendation for Client review,
approval and signature of
contract(s)
|
-29-
|
MANAGEMENT
AGREEMENT
|
|
|
g.
|
Prepare
and Manage General Contractor bid and contract
process
|
|
|
h.
|
Receive
and analyze construction proposals and submit recommendation for Client
review, approval and signature of
contract
|
|
|
i.
|
Prepare
analysis of Conceptual Plans to confirm project requirements and
opportunities for Value
Engineering.
|
|
|
j.
|
Direct
assistance with requesting release of Vendor
reserves.
|
Design
and Construction Management
|
|
a.
|
Prepare
analysis of Design Plans and subsequent Construction Documentation to
confirm project requirements and opportunities for Value
Engineering
|
|
|
b.
|
Develop
Landlord/Building Management coordination plan for project
requirements
|
|
|
c.
|
Establish
and attend periodic site meetings with Project
Team
|
|
|
d.
|
Monitor
Project Schedule and progress of work and report to
Client
|
|
|
e.
|
Monitor
Budget and report to Client
|
|
|
f.
|
Accountability
on Project Over-runs
|
|
|
g.
|
Monitor
field activities and report to
Client
|
|
|
h.
|
Review
monthly requests for payment from Project
Vendors
|
|
|
i.
|
Monitor
completion of field inspections
|
|
|
j.
|
Advise
Client as to expected award of TCO
|
|
|
k.
|
Conduct
Punch List inspection with Architect and Client, (Architect to issue
written documentation)
|
|
|
l.
|
Monitor
final sign-off of Improvements
|
|
m.
|
Manage
Close-Out of Project Vendor
contracts
|
THIS
CONSTRUCTION MANAGEMENT ADDENDUM is executed by the parties concurrently with
the Real Estate Property Management Agreement referred to above.
|
Owner:
By:
Print Name:
Its:
|
Manager:
CB XXXXXXX
XXXXX, INC.,
a Delaware corporation
By:
Print Name:
Its:
|
-30-
