PROPERTY MANAGEMENT AGREEMENT
Exhibit 10.50
THIS PROPERTY AND ASSET MANAGEMENT AGREEMENT (this “Agreement”) is made as of this 11th day of
August, 2010 (the “Effective Date”), by and between TNP SRT San Jacinto, LLC, a Delaware limited
liability company, its successors and assigns (the “Company”) and TNP Property Manager, LLC, a
Delaware limited liability company (the “Property Manager”).
Recitals
WHEREAS, Company owns that certain real property commonly known as San Jacinto Esplanade
located at 2181-2291 West Esplanade Avenue, San Jacinto, Riverside County, California, and as
further described in Exhibit “A” attached hereto and incorporated herein (the “Property”); and
WHEREAS, Company desires to engage, and the Property Manager desires to be engaged, to
supervise, manage, lease, operate and maintain the Property on the terms and conditions set forth
in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual promises and obligations set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Commencement and Termination Dates. This Agreement shall commence on the Effective
Date and shall terminate on the earlier to occur of: (i) the sale of the Property or any portion
thereof (in which event only as to such portion of the Property sold); (ii) the termination of this
Agreement pursuant to Section 15 below; or (iii) December 31, 2030 (the “Term”).
2. Authority of Property Manager. Subject to the approval of Company where required
hereunder, Property Manager shall have the power and authority to act on behalf of the Company with
respect to the duties conferred upon Property Manager hereunder. The power and authority granted
by Company to Property Manager hereunder shall include the power and authority to execute,
acknowledge, and swear to the execution, acknowledgment of and the filing of, documents involving
the ownership, financing, management and operation of the Property which are consistent with this
Agreement, and any and all such other documents as may be necessary to implement the management
powers of Property Manager set forth in this Agreement. If Company shall now or hereafter be
comprised of more than one person or entity, any approval of Company required hereunder shall be
deemed granted upon the affirmative consenting vote of persons or entities holding more than fifty
percent (50%) of the interest in the Property.
3. Status of the Property Manager. The Company and the Property Manager do not intend
to form a joint venture, partnership or similar relationship. Instead, the parties intend that the
Property Manager shall act solely in the capacity of an independent contractor for the Company.
Nothing in this Agreement shall cause the Property Manager and the Company to be joint venturers or
partners of each other, and neither shall have the power to bind or obligate the other party by
virtue of this Agreement, except as expressly provided in this Agreement. Nothing in this Agreement
shall deprive or otherwise affect the right of either party to own, invest in, manage, or operate,
or to conduct business activities which compete with the business of, the Property.
4. Property Manager’s Responsibilities
4.1 Management. Property Manager shall manage, operate and maintain the Property in a
diligent, professional and commercially reasonable manner, subject to the terms and provisions of
this Agreement; provided, however, that Company shall make available to the Property Manager such
sums as are reasonably necessary to pay the costs thereof. Property Manager may implement such
procedures with respect to the Property as Property
Manager may deem advisable for the more efficient and economically sound management, operation
and maintenance thereof.
4.2 Employees and Third Party Contractors. At all times during the Term, Property
Manager shall employ, directly or through third party contractors (e.g., employing a local property
management and/or leasing company), a sufficient number of capable employees and/or third party
contractors to enable Property Manager to properly, adequately, safely and economically manage,
operate and maintain the Property. All matters pertaining to the supervision of such employees
and/or third party contractors shall be the responsibility of Property Manager. All salaries and
benefits of employees who perform work in connection with the Property shall be consistent with the
Budget (as hereinafter defined).
4.3 Compliance with Laws, Loan Documents and Other Matters.
4.3.1 Property Manager shall use commercially reasonable efforts to comply with any applicable
Loan Documents (as hereinafter defined) and governmental requirements relative to the performance
of its duties hereunder. Expenses incurred to remedy any violations of laws or to comply with the
Loan Documents shall be drawn from the Operating Account (as hereinafter defined); provided,
however, that Property Manager shall not be obligated to expend funds to remedy any such violations
if sufficient funds are not available in the Operating Account or if Company does not provide
sufficient additional funds to do so.
4.3.2 Promptly after receipt, Property Manager shall furnish to Company copies of any notices
of violation of any governmental requirement, orders issued by any governmental entity and any
notices of default from the Lender (as hereinafter defined).
5. Budgets and Operating Plan.
5.1 Property Manager shall prepare and submit to Company a capital and operating budget on a
monthly, generally accepted accounting principles in the United States (“GAAP”) basis for the
management, operation and maintenance of the Property for each calendar year (each, a “Budget”).
The Budget for the initial calendar year shall be prepared by manager and submitted to Company
within thirty days of the date of this Agreement and such initial Budget shall be reasonably
acceptable to Lender as hereinafter defined. On or prior to December 15th of the
calendar year prior to all subsequent Budget years, or as soon as possible thereafter, Property
Manager shall deliver to Company for approval a proposed Budget for the following calendar year.
Company shall have fifteen (15) days after receipt of the same to approve or disapprove the
proposed Budget (the “Budget Review Period”), and shall notify Property Manager of its approval or
disapproval of the proposed Budget within the Budget Review Period. Any notice of disapproval
shall set forth the grounds for such disapproval with specificity such that Property Manager may
endeavor to address those grounds in a revised, proposed Budget to be thereafter submitted to
Company. If Company fails to notify Property Manager of its disapproval of the Budget within the
Budget Review Period, Company shall be deemed to have approved of the Budget. In the event a
portion of any proposed Budget is disapproved, Property Manager may proceed under the proposed
Budget for items that are not so disapproved and may take any actions permitted hereunder with
respect to such items. In the event that any disapproved Budget items are operational
expenditures, as opposed to capital expenditures, Property Manager shall be entitled to operate the
Property using the prior year’s Budget for such items plus 5% until approval is obtained. Property
Manager shall provide Company with such information regarding the Budget as may be, from time to
time, reasonably requested by the Company. Property Manager shall charge all expenses to the
proper account as specified in the approved Budget, provided that Property Manager may reallocate
savings from one line item to other line items.
5.2 At any time during the calendar year to which any particular Budget applies and prior to
making any expenditure which is not within an approved Budget, Property Manager may submit a
proposed revision to such Budget to the Company for its approval consistent with the terms set
forth above. Notwithstanding anything to the contrary in this Agreement, Property Manager shall
not be required to submit a proposed Budget revision to Company for approval if any such
expenditure is (a) less than 10% of the total Budget; or (b) is, in Property Manager’s reasonable
judgment, required to avoid personal injury, significant property damage, a default
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under any Loan Documents, a violation of applicable law or the suspension of a service
(collectively, “Permitted Expenditures”).
5.3 On or prior to December 15th of the calendar year prior to all subsequent
Budget years, or as soon as possible thereafter, Property Manager shall submit to the Company, for
information purposes only, an operating plan for the general operation of the Property, including a
proposed list of improvements to the Property, general insurance plan, marketing plan and plan for
the general operation and maintenance of the Property (the “Operating Plan”). Property Manager may
submit a revised Operating Plan to the Company at any time.
6. Leasing.
6.1 Company hereby approves (i) all leases of any portion of the Property (collectively, and
together with any amendments thereto, assignments thereof and guaranties thereto pertaining, the
“Leases”) in effect as of the Effective Date.
6.2 Property Manager shall use commercially reasonable efforts to lease all vacant, leasable
space in the Property and to renew Lease agreements in effect as of the Effective Date, and Company
hereby grants Property Manager the power and authority to negotiate new Leases and Lease renewals
and to take all actions as may be necessary or desirable, in Property Manager’s reasonable
discretion, on behalf of Company, to accomplish the foregoing. Property Manager shall reasonably
investigate all prospective Tenants (as hereinafter defined), and shall not lease to persons not
meeting credit standards reasonable for the market. Property Manager may, in its discretion, obtain
a credit check for any prospective Tenant through a credit check company. Property Manager shall
retain such information for the duration of any ensuing tenancy, and shall make it available to
Company upon reasonable notice, subject to compliance with any confidentiality restrictions
required by any such Tenant or any credit check company. Notwithstanding the foregoing, Property
Manager does not guarantee the accuracy of any such information or the financial condition of any
Tenant.
6.3 Property Manager shall provide Company with any proposed new Lease or Lease renewal for
approval (each, a “Proposed Lease Transaction”). Company shall have five (5) business days after
receipt of the Proposed Lease Transaction to approve or disapprove the Proposed Lease Transaction
(the “Lease Review Period”), and shall notify Property Manager of its approval or disapproval of
the Proposed Lease Transaction within the Lease Review Period. Any notice of disapproval shall set
forth the grounds for such disapproval with specificity such that Property Manager may endeavor to
address those grounds in a revised Proposed Lease Transaction to be thereafter submitted to
Company. If Company fails to notify Property Manager of its disapproval of any Proposed Lease
Transaction within the Lease Review Period, Company shall be deemed to have approved of the
Proposed Lease Transaction.
6.4 Property Manager will use commercially reasonable efforts (a) to develop and maintain good
relations with the tenants under the Leases (each, a “Tenant,” and collectively, the “Tenants”);
(b) to retain existing Tenants in the Property and, after completion of the initial leasing
activity for new Tenants, to retain such new Tenants; (c) to secure compliance by the Tenants with
the terms and conditions of their respective Leases; (d) to consider and record Tenant service
requests in systematic fashion showing the action taken with respect to each, and thoroughly
investigate all complaints of a nature which might have a material adverse effect on the Property
or the Budget; and (e) to supervise the moving in and out of Tenants and arrange, to the extent
possible, the dates thereof to minimize disturbance to the operation of the Property and
inconvenience to other Tenants.
6.5 Except as otherwise provided herein or upon the prior written consent of Company, Property
Manager shall not lease any space in the Property to itself or to any of its affiliates or
subsidiaries.
6.6 Property Manager and Company agree that there shall be no discrimination against or
segregation of any person or group of persons on account of age, race, color, religion, creed,
handicap, sex or national origin in the leasing of the Property.
6.7 Property Manager is hereby authorized to execute, on behalf of Company, any and all
Service Contracts (hereinafter defined), Subordination and Non-Disturbance Agreements, Tenant
Estoppel Certificates and Tenant Notices with respect to the Property, as well as notices,
estoppels certificates and other
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documents relating to the Loan (hereafter defined) which are ministerial in nature.
6.8 Property Manager shall coordinate and facilitate all tenant improvements contemplated by
the Leases (collectively, “Tenant Improvements”) in accordance with the terms of this Agreement.
For any Tenant Improvement contract requiring payment in excess of $100,000, the Property Manager
shall follow the bidding requirements specified in Section 7.2.
7. Collection of Rents and Other Income. Unless otherwise required by any Loan
Documents, Property Manager shall xxxx all Tenants for, when appropriate, and shall use
commercially reasonable efforts to collect, all rent and other charges due and payable from all
Tenants. Property Manager shall have the authority to use all commercially reasonable methods to
collect such rent and other charges due, including, without limitation, pursuing litigation against
any Tenant. Property Manager shall deposit all monies so collected in the Operating Account.
7.1 Repairs and Maintenance. Property Manager shall use commercially reasonable
efforts to maintain and repair the buildings, appurtenances and grounds of the Property, other than
areas which are the responsibility of Tenants, and to take precautions against fire at, vandalism
of, burglary of and trespass to the Property. Such maintenance and repair obligations shall
include, without limitation, janitorial services, painting, decorating, electrical, plumbing,
carpentry, masonry, elevators and such other routine repairs as are necessary or reasonably
appropriate in the course of maintenance of the Property.
7.2 Capital Expenditures. Property Manager may make any capital expenditure within
any Budget approved by the Company. All other capital expenditures, other than Permitted
Expenditures, shall be subject to submittal of a revised Budget to Company for approval in
accordance with the terms of this Agreement. Unless Company specifically waives such requirements,
Property Manager shall award any contract for a capital improvement exceeding $100,000 in cost on
the basis of competitive bidding, selected from a minimum of two (2) written bids. Property Manager
shall accept the bid of the lowest bidder determined by Property Manager, in its sole discretion,
to be responsible, qualified and capable of completing such capital improvements on a reasonable
schedule and as bid.
7.3 Service Contracts. Property Manager may enter into or renew any contract with any
unrelated third party for cleaning, maintaining, repairing or servicing the Property or any portion
thereof (including, but not limited to, contracts for fuel oil, security or other protection, or
extermination, janitorial, landscaping, architectural or engineering services) (collectively, the
“Service Contracts”) contemplated by the Budget and consistent with the Operating Plan. Each such
Service Contract shall (a) be in the name of Company or in the name of Property Manager as agent
for the Company; (b) be assignable to the nominee of the Company; and (c) be for a term not to
exceed one (1) year, unless the circumstances require otherwise, in the sole discretion of Property
Manager. Unless Company specifically waives such requirements, all Service Contracts for amounts in
excess of $100,000 per year shall be subject to the bidding requirements specified in Section 7.2
above. If this Agreement expires or is terminated pursuant to Section 15 below, Property Manager
shall assign to Company or the nominee of Company all, to the extent assignable, of Property
Manager’s interest, if any, in and to the Service Contracts.
7.4 Supplies and Equipment. Property Manager may purchase, provide and pay for out of
the Operating Account (so long as contemplated by the Budget or deemed to be a Permitted
Expenditure) all needed janitorial and maintenance supplies, tools and equipment, restroom and
toilet supplies, light bulbs, paints and similar supplies necessary for the management, operation
and maintenance of the Property (collectively, the “Supplies and Equipment”). Such Supplies and
Equipment shall be the property of Company, shall be delivered to and stored at the Property and
shall be used only in connection with the management, operation, and maintenance of the Property.
Property Manager shall use commercially reasonable efforts to purchase all goods, supplies or
services at the lowest cost reasonably available from reputable sources in the metropolitan area
where the Property is located.
7.5 Taxes. Property Manager shall obtain and verify bills for real estate and
personal property taxes, general and special real property assessments and other like charges
relating to the Property (collectively “Taxes”). If requested by Company, Property Manager will
cooperate with Company to challenge the Taxes and the assessed valuation of the Property. To the
extent contemplated by the Budget, Property Manager shall pay, within the time required to obtain
discounts, from the Operating Account or funds provided by the Company, all Taxes.
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7.6 Construction Management. Property Manager shall be responsible for coordinating
and facilitating the planning and the performance of all construction including, without
limitation, all maintenance, repairs, capital improvements, common area refurbishments and Tenant
Improvements required to be constructed by Company after the Effective Date (collectively,
“Construction Projects”), regardless of whether or not any of the Construction Projects arises out
of a Lease executed prior to the Effective Date. Such coordination and facilitation services shall
include, for example and not by any way of limitation, retaining architects, engineers or other
consultants, assisting in the development of repair, capital improvement or Tenant space plans,
cost estimating, advising Company with respect to the need for a general contractor, construction
manager or other consultant, posting of appropriate notices of non-responsibility, providing
notices of construction to affected Tenants and mitigating the effects of construction on such
Tenants, and providing contractors, vendors and other Construction Property related personnel with
access to the Property, parking and staging areas, necessary utilities and services. Property
Manager shall be responsible for conducting meetings as deemed reasonably necessary by Property
Manager, with the architect, contractor and consultants for all Construction Projects. Property
Manager will also prepare a written report to Company as deemed reasonably necessary regarding the
progress of each Construction Property in a format to be approved by the Company.
7.7 Limitation. Notwithstanding anything to the contrary contained herein, Property
Manager shall only provide services to Tenants which are customary to the management of similar
properties in that geographic area of the Property and shall provide no other services to the
Tenants on behalf of the Company.
8. Basic Insurance.
8.1 Insurance.
8.1.1 Property Manager, at Company’s expense, will obtain and keep in force adequate insurance
against physical damage (such as fire with extended coverage endorsement, boiler and machinery) and
against liability for loss, damage or injury to property or persons that might arise out of the
management, operation or maintenance of the Property, as contemplated by the Operating Plan and any
Loan Documents. Property Manager shall not be required to maintain earthquake, flood or windstorm
insurance unless expressly directed to do so by a specific written notice from Company or as
required by any Loan Documents, but may do so in Property Manager’s reasonable discretion.
Property Manager shall be a named insured on all property damage insurance and an additional
insured on all liability insurance maintained with respect to the Property. In the event Property
Manager receives insurance proceeds for the Property, the Property Manager will take any required
actions as set forth in any Loan Documents affecting the Property. In the event that the Property
Manager receives insurance proceeds that are not governed by the terms of any Loan Documents
affecting the Property, the Property Manager, in its reasonable discretion, will either (a) use
such proceeds to replace, repair or refurbish the Property or (b) distribute such proceeds to
Company, as directed by Company. Any insurance proceeds distributed to Company will be distributed
subject to the fees owed to Property Manager pursuant to this Agreement. Property Manager shall
not knowingly permit the use of the Property for any purpose that might void any policy of
insurance held by Company or which might render any loss thereunder uncollectible.
8.1.2 Property Manager shall investigate and, as soon as is reasonably practicable thereafter,
submit a written report describing the same to Company and the insurance carrier, if applicable,
together with the estimated costs of repair thereof, and prepare and file with the insurance
company in a timely manner required reports in connection therewith. Notwithstanding the
foregoing, Property Manager shall not be required to give such notice to Company if the amount of
such claims, damage or destruction, as reasonably estimated by the Property Manager, does not
exceed $100,000 for any one occurrence. Property Manager shall settle all claims against insurance
companies arising out of any policies, including the execution of proofs of loss, the adjustment of
losses, signing and collection of receipts and collection of money, except that Property Manager
shall not settle claims in excess of $100,000 without the prior approval of the Company.
8.2 Contractor’s and Subcontractor’s Insurance. Property Manager shall require all
contractors and subcontractors entering upon the Property to perform services to have insurance
coverage, at such contractor’s or subcontractor’s expense, in the following minimum amounts: (a)
worker’s compensation — statutory amount; (b) employer’s liability (if required under applicable
law) — $500,000 (minimum); and (c) comprehensive general
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liability insurance, including comprehensive auto liability insurance covering the use of all
owned, non-owned and hired automobiles, with bodily injury and property damage limits of $1,000,000
per occurrence and $2,000,000 in the aggregate. Property Manager shall obtain and keep on file a
certificate of insurance that shows that each contractor and subcontractor is so insured. Property
Manager may waive such requirements in its reasonable discretion.
8.3 Waiver of Subrogation. To the extent available at commercially reasonable rates,
all property damage insurance policies required hereunder shall contain language whereby the
insurance carrier thereunder waives any right of subrogation it may have with respect to Company or
Property Manager. Property Manager may waive such requirement in its reasonable discretion.
9. Financial Reporting And Record Keeping.
9.1 Books of Accounts. Property Manager shall maintain adequate and separate books
and records for the Property with the entries supported by sufficient documentation to ascertain
their accuracy. Such books and records shall contain a separate accounting of all items of income
and expenses. Company agrees to provide Property Manager with any financial or other information
reasonably requested by Property Manager to carry out its services hereunder. Property Manager
shall maintain such books and records at the Property Manager’s office at the address as set forth
in Section 18, or at the office of any local property manager or leasing company to whom Property
Manager may have subcontracted its duties hereunder or at the Property. Property Manager shall
bear losses arising from the fraud or gross negligence of Property Manager or any of its employees
or agents relating to the books and records required to be maintained in accordance with this
Section.
9.2 Financial Reports. On or about the 45th day following the end of each calendar
quarter, Property Manager shall furnish to the Company a report of all significant transactions
occurring during such prior quarter, including, without limitation, a cash flow statement, a
current rent roll and an update on the status of the Property. Within a reasonable time after (i)
the close of a calendar year and (ii) the expiration or termination of this Agreement, Property
Manager also shall deliver to Company an operating statement, a cash flow statement, a balance
sheet for the Property and such other financial information as Property Manager, in its discretion,
prepares. The financial statements and reports shall be prepared on a generally accepted accounting
principles in the United States (“GAAP”) basis (unless the Loan Documents specify otherwise) and in
compliance with all reporting requirements relating to the operations of the Property and required
under then applicable Loan Documents.
9.3 Supporting Documentation. Property Manager shall maintain and make available at
Property Manager’s office at the address set forth in Section 18, or at the office of any local
property manager or leasing company to whom Property Manager may have subcontracted its duties
hereunder or at the Property, copies of the following: (a) all bank statements and bank
reconciliations; (b) detailed cash receipts and disbursement records; (c) rent roll of tenants; and
(d) paid invoices (or copies thereof); Property Manager shall deliver a copy of the documents
described above to Company upon written request.
9.4 Tax Information. Property Manager shall provide Company with sufficient
information so that the Company can prepare its income tax returns.
10. Right to Audit. Company and its representatives may examine all books, records and
files maintained for Company by Property Manager. Company may perform any audit or investigations
relating to the Property Manager’s activities regarding the Property at Property Manager’s office
at the address as set forth in Section 18, or at the office of any local property manager or
leasing company to whom Property Manager may have subcontracted its duties hereunder or at the
Property. Should Company discover defects in internal control or errors in record keeping, Property
Manager shall undertake, with all appropriate diligence, to correct such discrepancies either upon
discovery or within a reasonable period of time thereafter. Property Manager shall inform Company
in writing of the action taken to correct any audit discrepancies.
11. Bank Accounts.
11.1 Operating Account. To the extent funds are not required to be placed in a lockbox
pursuant to
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any Loan Documents, Property Manager shall deposit all rents and other funds collected from
the operation of the Property in a reputable bank or financial institution in a special trust or
depository account or accounts for the Property maintained by Property Manager for the benefit of
the Company (such accounts, together with any interest earned thereon, shall collectively be
referred to herein as the “Operating Account”). Property Manager shall maintain books and records
of the funds deposited in and withdrawals from the Operating Account. With funds from Company,
Property Manager shall maintain the Operating Account so that an amount at least as great as the
budgeted expenses for such month is in the Operating Account as of the first of each month. From
the Operating Account, Property Manager shall pay the operating expenses of the Property and any
other payments relative to the Property as required by this Agreement. If more than one account is
necessary to operate the Property, each account shall have a unique name, except to the extent any
Lender requires sub-accounts within any account. Within three (3) months after receipt by Property
Manager, all rents and other funds collected in the Operating Account, after payment of all
operating expenses, debt service and such amounts as may be determined by the Property Manager to
be retained for reserves or improvements, shall be paid to the Company.
11.2 Security Deposit Account. If applicable law or a Lender requires a segregated
account of Tenant security deposits, Property Manager will open a separate account at a reputable
bank or other financial institution. Property Manager may return such deposits to any Tenant in
the ordinary course of business in accordance with the terms of the applicable Lease.
11.3 Access to Account. As authorized by signature cards, representatives of Property
Manager shall have access to and may draw upon all funds in the accounts described in Sections 11.1
and 11.2 without the approval of Company. Additionally, representatives of Property Manager shall
have access to and may draw upon any funds escrowed or held in reserve for capital expenditures,
without the approval of the Company, provided that the requirements of Section 7.2 and any
additional Lender requirements with respect to such amounts are satisfied. Company may not
withdraw funds from such accounts without the Property Manager’s prior written consent, except (a)
following the Property Manager’s default, and then after expiration of all applicable notice and
cure periods or (b) the expiration or earlier termination of this Agreement.
12. Payments of Expenses.
12.1 Eligible Costs. In accordance with the Budget and the terms of this Agreement,
Property Manager shall pay all expenses of the management, operation, maintenance of the Property
directly from the Operating Account or shall be reimbursed by the Company, including without
limitation the following: (a) the cost to correct the violation of any governmental requirement
relating to the leasing, use, repair and maintenance of the Property, or relating to the rules,
regulations or orders of the local Board of Fire Underwriters or other similar body, if such cost
is not the result of the Property Manager’s gross negligence or willful misconduct; (b) the actual
and reasonable cost of making all repairs, decorations and alterations if such cost is not the
result of the Property Manager’s gross negligence or willful misconduct; (c) cost incurred by
Property Manager in connection with all Service Contracts, including costs under any agreement with
the Property Manager; (d) the cost of collection or attempted collection of delinquent rents
collected by a collection agency or attorney; (e) legal fees of attorneys; (f) the cost of capital
expenditures subject to the restrictions in Section 7.2; (g) the cost of printed checks for each
account required by the Property and Company; (h) the cost of utilities; (i) the cost of
advertising; (j) the cost of printed forms and supplies required for use at the Property; (k) the
costs of Property Manager’s compensation set forth in Section 14; (l) the cost of Tenant
Improvements; (m) any third-party leasing commissions for services provided in leasing the
Property; (n) any third-party construction management fees for services provided in supervising any
construction or repair in or about the Property; (o) any third-party selling commissions for the
sale, exchange, or transfer of the Property or any portion thereof; (p) debt service; (q) the cost
of insurance; (r) reimbursement of the Property Manager’s out-of-pocket costs and expenses to the
extent not prohibited by Section 7; (s) the cost of general accounting and reporting services
within the reasonable scope of Property Manager’s responsibility to Company; (t) the cost of the
Supplies and Equipment and forms, papers, ledgers and other supplies and equipment (including
computer equipment) used in the Property Manager’s office at any location; (u) cost of electronic
data processing equipment, including personal computers located at the Property Manager’s office at
the Property for preparation of reports, information and returns to be prepared by the Property
Manager under the terms of this Agreement; (v) cost of electronic data processing provided by
computer service companies for preparation of reports, information and returns to be prepared by
the Property Manager under the terms of this Agreement; (w) all
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non-overhead out of pocket expenses of the Property Manager.
12.2 Operating Account Deficiency. If there are not sufficient funds in the Operating
Account to make any payment referenced in Section 7, Property Manager shall notify Company, if
possible, at least ten (10) days prior to any delinquency so that the Company has an opportunity to
deposit sufficient funds in the Operating Account to allow for such payment prior to the imposition
of any penalty or late charge. In no event shall Property Manager be required to expend any of its
own funds for the operation or maintenance of the Property; provided, however, that should Property
Manager do so, Property Manager shall be entitled to reimbursement from Company within thirty (30)
days after such advance.
13. Property Manager’s Costs Not to Be Reimbursed.
13.1 Non-reimbursable Costs. The following expenses or costs incurred by or on behalf
of the Property Manager in connection with its duties hereunder shall be at the sole cost and
expense of the Property Manager and shall not be reimbursed by the Company: (a) costs attributable
to losses arising from gross negligence, willful misconduct or fraud on the part of the Property
Manager or its associates or employees; and (b) cost of insurance purchased by the Property Manager
for its own account.
13.2 Litigation. The Property Manager will be responsible for, and hold the Company
harmless from, all costs relating to disputes with employees for worker’s compensation (to the
extent not covered by insurance), discrimination or wrongful termination, including legal fees and
other expenses.
14 Compensation.
14.1 Property Management Fee. For its services in managing the day-to-day operations
of the Property in accordance with the terms of this Agreement, Company shall pay to Property
Manager an annual property management fee (the “Property Management Fee”) equal to 5.0% of the
Gross Revenue (as hereinafter defined). The Property Management Fee shall be prorated for any
partial year and shall be payable in equal monthly installments, in advance. The Property
Management Fee shall be payable on the first day of each month from the Operating Account or from
other funds timely provided by the Company. Upon the expiration or earlier termination of this
Agreement, the parties will prorate the Property Management Fee on a daily basis to the effective
date of such expiration or termination. Notwithstanding the foregoing and in addition thereto,
upon a sale of the Property, Company shall pay to Property Manager an amount equal to one monthly
installment of the Property Management Fee as compensation for work to be performed in connection
with the sale and/or completion of managing matters relating to each Tenant. For purposes of this
Agreement, the term “Gross Revenue” shall mean all gross collections from the operations of the
Property, including, without limitation, rental receipts, late fees, application fees, pet fees,
damages, lease buy-out payments, reimbursements by Tenants for common area expenses, operating
expenses and taxes and similar pass-through obligations paid by Tenants, but shall expressly
exclude (i) security deposits received from Tenants and interest accrued thereon for the benefit of
the Tenants until such deposits or interest are included in the taxable income of the Company; (ii)
advance rents (but not lease buy-out payments) until the month in which payments are to apply as
rental income; (iii) reimbursements by Tenants for work done for a particular Tenant; (iv) proceeds
from the sale or other disposition of all or any portion of the Property; (v) insurance proceeds
received by the Company as a result of any insured loss (except proceeds from rent insurance or the
excess of insurance proceeds for repairs over the actual costs of such repairs); (vi) condemnation
proceeds not attributable to rent; (vii) capital contributions made by the Company; (viii) proceeds
from capital, financing and any other transactions not in the ordinary course of the operation of
the Property; (ix) income derived from interest on investments or otherwise; (x) abatement of
taxes, awards arising out of takings by eminent domain and discounts and dividends on insurance
policies; and (xi) rental concessions not paid by third parties.
14.2 [Intentionally Deleted.]
14.3 [Intentionally Deleted.]
14.4 [Intentionally Deleted]
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14.5 [Intentionally Deleted]
14.6 [Intentionally Deleted]
14.7 Notwithstanding anything to the contrary in this Agreement, Property Manager shall have
the right to designate another entity to receive any of the amounts to which Property Manager is
entitled under this Agreement.
15. Termination.
15.1 Termination by Company. Company shall have the right to terminate this Agreement
“for cause” upon thirty (30) days written notice to Property Manager. For purposes of this
Agreement, termination “for cause” shall mean termination based upon (i) gross negligence or fraud
by the Property Manager; (ii) willful misconduct or a willful breach of this Agreement by the
Property Manager; or (iii) a bankruptcy filing, state of insolvency by the Property Manager or
inability of the Property Manager to meet its financial or service obligations as they come due.
Company shall not have the right to terminate this Agreement except in the event of a termination
“for cause.”
15.2 Termination by Property Manager.
15.2.1 The Property Manager shall have the right to terminate this Agreement for any reason or
no reason upon thirty (30) days written notice to the Company. In addition, the Property Manager
shall have the right to terminate this Agreement “for cause”, provided that (i) the Company is in
default in the performance of any of their obligations hereunder, and such default remains uncured
for thirty (30) days following the Property Manager’s giving of written notice of such default to
the Company or (ii) any governmental law, regulation, or ruling requires the Property Manager to so
terminate this Agreement.
15.2.2 Property Manager shall have the right to terminate this Agreement for any reason upon
sixty (60) days written notice to Company.
16. Final Accounting. Within forty-five (45) days after the expiration or earlier
termination of this Agreement for any reason, Property Manager shall: (a) deliver to the Company a
final accounting, setting forth the balance of income and expenses on the Property as of the date
of expiration or termination; (b) transfer to any account indicated by the Company any balance or
monies of the Company or Tenant security deposits held by the Property Manager with respect to the
Property (or transfer the accounts in which such sums are held as instructed by the Company); and
(c) deliver to any subsequent property manager or other agent indicated by the Company all
materials and supplies, keys, books and records, Service Contracts, Leases, receipts for deposits,
unpaid bills and other papers or documents in Property Manager’s possession that pertain to the
Property. For a period of forty-five (45) days after such expiration or termination for any reason
other than Company’s default, Property Manager shall (x) be available, through its senior
executives familiar with the Property, to consult with and advise Company or any person or entity
succeeding to Company as owner of the Property or such other person or persons selected by Company
regarding the operation and maintenance of the Property; (y) cooperate with Company in notifying
all Tenants of the expiration and termination of this Agreement; and (z) shall use commercially
reasonable efforts to cooperate with Company to accomplish an orderly transfer of the operation and
management of the Property to a party designated by the Company, and Company shall pay to Property
Manager its prorated share of the Property Management Fee for such services through the conclusion
of such forty-five (45) day period. On or prior to the expiration or earlier termination of this
Agreement, Property Manager shall, at its cost and expense, remove all signs wherever located
indicating that it is the property manager for the Property and shall replace and repair any damage
resulting from such removal. Neither the expiration nor the termination of this Agreement shall
release either party from liability for failure to perform any of the duties or obligations as
expressed herein or required hereunder to be performed by such party for the period before the
termination.
17. Conflicts. The Property Manager shall not deal with or engage, or purchase goods
or services from, any subsidiary or affiliated company of the Property Manager in connection with
the management of the
9
Property for amounts above market rates.
18. Notices. Any notice to be given or other document or payment to be delivered by
any party to any other party hereunder shall be addressed to the party for whom intended, as
follows:
To the Property Manager at:
TNP Property Manager, LLC
c/o Thompson National Properties, LLC
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Property Management
c/o Thompson National Properties, LLC
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Property Management
To the Company at:
TNP SRT San Jacinto, LLC
c/o Thompson National Properties, LLC
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Asset Management
c/o Thompson National Properties, LLC
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Asset Management
Any party hereto may from time to time, by written notice to the other, designate a different
address which shall be substituted for the one above specified. Unless otherwise specifically
provided for herein, all notices, payments, demands or other communications given hereunder shall
be in writing and shall be deemed to have been duly given and received (i) upon personal delivery
or refusal thereof; (ii) upon confirmation of transmission via facsimile from the sender’s
facsimile machine; or (iii) the immediately succeeding business day after deposit with Federal
Express or other similar overnight delivery system.
19. Miscellaneous.
19.1 Assignment.
19.1.1 By Property Manager. Property Manager may not assign this
Agreement without the prior written consent of Company, which consent may be
withheld in Company’s sole and absolute discretion. Notwithstanding the foregoing,
without Company’s prior written consent and in Property Manager’s sole discretion,
Property Manager shall be permitted to (a) assign this Agreement to an affiliate,
including, but not limited to, a partially-owned or wholly-owned subsidiary of
Property Manager; and (b) assign, subcontract or delegate the day-to-day management
responsibilities, leasing services and/or disposition services to one or more local
property managers or leasing companies, so long as Property Manager continues to
supervise the overall management of the Property. Property Manager may lease space
within the Property to any such local property manager or leasing company.
19.1.2 By Company. Company may assign its rights under this Agreement
to a party or parties acquiring Company’s interest in the Property (whether one or
more, “Successor Company”). Successor Company shall take such interest subject to
this Agreement, and Company and Successor Company shall execute an agreement whereby
(i) Company assigns to Successor Company all of its right, title and interest in and
to this Agreement; and (ii) Successor Company assumes, and agrees to perform
faithfully and to be bound by, all of the terms, covenants, conditions, provisions
and agreements of this Agreement with respect to the interest to be transferred.
Upon execution of such assignment and assumption agreement, the assigning Company
shall be relieved of all liability accruing after the effective date of the
assignment and assumption agreement, and, without further action by Property Manager
or Successor Company,
10
Successor Company shall become a party to this Agreement and shall be treated
as “Company” for all purposes hereunder as to its respective percentage interest in
the Property.
19.2 Gender. Each gender shall include each other gender. The singular shall include
the plural and vice-versa.
19.3 Amendments. Any purported amendments to or modifications of this Agreement
shall not be effective unless approved by both of the parties in writing.
19.4 Attorneys’ Fees. With regard to any action or proceeding between Property
Manager and Company arising from or relating to this Agreement or the enforcement or
interpretation hereof, the party prevailing in such action or proceeding shall be entitled to
recover from the other party all of its reasonable attorneys’ fees and other costs and expenses of
the action or proceeding.
19.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the state in which the Property is located without regard to any choice
of law rules.
19.7 Headings. All headings are only for convenience and ease of reference and are
irrelevant to the construction or interpretation of any provision of this Agreement.
19.8 Time is of the Essence. Time is of the essence of each and every provision of
this Agreement.
19.9 Indemnification by Property Manager. Property Manager shall indemnify, defend
and hold Company and its shareholders, officers, directors, members, partners and employees
harmless from any and all claims, demands, causes of action, losses, damages, fines, penalties,
liabilities, costs and expenses, including reasonable attorneys’ fees and court costs, sustained or
incurred by or asserted against Company where it is determined by final judicial determination that
such loss, cost or expense was the result of the acts or omissions of Property Manager which arise
out of the gross negligence, willful misconduct or fraud of Property Manager, its agents or
employees or Property Manager’s breach of this Agreement. If any person or entity makes a claim or
institutes a suit against the Company on a matter for which the Company claims the benefit of the
foregoing indemnification, then (a) the Company shall give the Property Manager prompt notice
thereof in writing; (b) the Property Manager may defend such claim or action by counsel of its own
choosing provided such counsel is reasonably satisfactory to the Company; and (c) neither the
Company nor the Property Manager shall settle any claim without the other’s written consent.
19.10 Indemnification by the Company. Company shall indemnify, defend and hold
Property Manager, Xxxxxxxx National Properties, LLC, and their shareholders, members, partners,
officers, directors, managers and employees (each, an “Indemnified Party”) harmless from any and
all claims, demands, causes of action, losses, damages, fines, penalties, liabilities, costs and
expenses, including reasonable attorneys’ fees and court costs, sustained or incurred by or
asserted against Indemnified Party (i) by reason of the operation, management, and maintenance of
the Property and the performance by the Property Manager of the Property Manager’s obligations
under this Agreement, including with respect to any injury, illness or death to any person or
damage to any property from any cause whatsoever occurring in or upon or in any other way relating
to the Property, except those instances which arise from the Property Manager’s gross negligence or
fraud, (ii) for any failure on the part of the Company to comply with any of the covenants, terms,
conditions, representations, warranties or indemnities of the Company contained in this Agreement;
(iii) in connection with, related to, or arising directly or indirectly from any liabilities,
duties, obligations, actions or omissions of any party operating, leasing or managing the Property
prior to the Effective Date, including without limitation liabilities or claims arising in
connection with any prior property manager’s business and its leasing and operation of the
Property. If any person or entity makes a claim or institutes a suit against Indemnified Party on
matter for which Indemnified Party claims the benefit of the foregoing indemnification, then (a)
the Indemnified Party shall give Company prompt notice thereof in writing; (b) Company may defend
such claim or action by counsel of its own choosing provided such counsel is reasonably
satisfactory to the Indemnified Party; (c) neither Indemnified Party nor Company shall settle any
claim without the other’s written consent; and (d) this subsection shall not be so construed as to
release Company or Property Manager from any liability to the other for a breach of any of the
covenants agreed to be performed under
11
the terms of this Agreement.
19.11 Complete Agreement. This Agreement shall supersede and take the place of any
and all previous agreements entered into and discussions between the parties with respect to the
Property, and this Agreement contains the entire agreement of the parties with respect to the
matters herein contained.
19.12 Severability. If any provisions of this Agreement or application to any party
or circumstances shall be determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement, then (a) the application of such
provisions to any party or circumstances other than those as to which it is determined to be
invalid or unenforceable shall not be affected thereby; and (b) the balance of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
19.13 No Waiver. The failure by either party to insist upon the strict performance of
or to seek remedy of any one of the terms or conditions of this Agreement or to exercise any right,
remedy or election set forth herein or permitted by law shall not constitute or be construed as a
waiver or relinquishment for the future of such term, condition, right, remedy or election. All
rights or remedies of the parties specified in this Agreement and all other rights or remedies that
they may have at law, in equity or otherwise, shall be distinct, separate and cumulative rights or
remedies, and no one of them, whether exercised or not, shall be deemed to be in exclusion of any
other right or remedy of the parties.
19.14 Binding Effect. This Agreement shall be binding and inure to the benefit of the
parties and their respective heirs, successors and assigns.
19.15 Enforcement of the Property Manager’s Rights. In any enforcement of its rights
under this Agreement, Property Manager shall not seek or obtain a money judgment or any other right
or remedy against any shareholders or disclosed or undisclosed principals of Company. Property
Manager shall enforce its rights and remedies solely against the estate of Company in the Property
or the proceeds of any sale thereof.
19.16 Counterparts. This Agreement may be executed in several counterparts, and all
so executed shall constitute one Agreement, binding on all of the parties hereto, notwithstanding
that all of the parties are not a signatory to the same counterpart.
19.17 Binding Arbitration. Any dispute, claim or controversy arising out of or
related to this Agreement, the breach hereof, the termination, enforcement, interpretation or
validity hereof, including the determination of the scope or applicability of this Agreement to
arbitrate, shall be determined by arbitration in the county in which the Property is located. The
arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and
Procedures. Judgment on the award may be entered in any court having jurisdiction. The
arbitrator shall, in the award, allocate all of the costs of the arbitration (and the mediation, if
applicable), including the fees of the arbitrator and the reasonable attorneys’ fees of the
prevailing party, against the party who did not prevail. Notwithstanding the foregoing, upon the
mutual agreement of the parties, the parties may submit any such dispute, claim or controversy to
non-binding mediation prior to the commencement of arbitration.
BY EXECUTING THIS AGREEMENT YOU ARE AGREEING TO HAVE CERTAIN DISPUTES DECIDED BY NEUTRAL
ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE SUCH DISPUTES LITIGATED IN A
COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU
MAY BE COMPELLED TO ARBITRATE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
19.18 Equitable Relief. Each party to this Agreement acknowledges and agrees that
remedies at law for a breach or threatened breach of any of the provisions of this Agreement may be
inadequate and, in recognition of this fact, each party to this Agreement agrees that in addition
to any remedies at law (including,
12
without limitation, damages), equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other equitable remedy
shall be available in the event of a breach or threatened breach of this Agreement.
20. Special Lender Provisions.
20.1 Company hereby grants to Property Manager, on behalf of Company, the power and authority
to interface and communicate with, and Property Manager shall have responsibility for interfacing
and communicating with, the holder of any deed of trust or mortgage now or hereafter encumbering
the Property (whether one or more, and together with any successors or assigns, the “Lender”)
securing any loan to Company (whether one or more, the “Loan”). With respect to interactions with
the Lender, Property Manager shall (a) make all day-to-day business decisions customarily decided
by a property manager; and (b) perform all services customarily performed by a property manager,
including, without limitation, (i) designating changes in address; (ii) receiving any and all
notices including, without limitation, default notices; (ii) requesting waivers of provisions in
any documents executed by Company in conjunction with the Loan (collectively, the “Loan Documents”)
and negotiating conditions to any such requested waivers; (iii) depositing rents or other revenues
in any lockbox account maintained under such Loan Documents; (iv) receiving into the Operating
Account all disbursements made out of any such lockbox to Company for the payment of operating
expenses of the Property or otherwise to be made to or to the account of Company as such borrower
under the Loan; and (v) requesting and receiving any amounts out of any reserve accounts or escrow
accounts maintained by Lender on account of repairs, capital improvements, tenant improvements,
leasing commissions, taxes and insurance proceeds or otherwise. Property Manager is expressly
empowered and authorized to make disbursement requests from, and to receive draws or disbursements
from, all reserve accounts and to receive disbursements from any lockboxes established under the
Loan Documents. Company and any Successor Company by its execution or assumption hereof
acknowledges and confirms the authorization hereby expressly given to the Lender to confer with
Property Manager on all matters arising under the Loan Documents insofar as they relate to the
management and operation of the Property and the obligations of Company to the Lender in connection
therewith. Lender may rely upon the provisions of this Section 20.1, and the actions of the
Property Manager taken pursuant thereto, without further inquiry, and Company shall be bound by any
such action Property Manager may take; provided, however, that nothing set forth herein shall
excuse the Property Manager from obtaining the consent of the Company if required hereunder.
20.2 Notwithstanding any of the provisions of this Agreement, no power or authority granted by
Company to Property Manager in this Agreement shall empower Property Manager to transfer or sell
the Property or any portion thereof.
20.3 Company and Property Manager hereby acknowledge and agree that their rights and remedies
provided for anywhere in this Agreement, including, without limitation, all rights of indemnity or
defense provided for above, and any and all fees payable hereunder, are subject and subordinate, as
to payment and in all other respects, to the Loan and the Loan Documents; provided, however, that
nothing set forth herein shall prohibit the current payment of amounts due under this Agreement.
In addition, Property Manager hereby irrevocably agrees to stand still and not to enforce any of
its legal rights or remedies hereunder, at law or in equity, including, without limitation, by
bringing any legal action or proceeding (including, without limitation, any involuntary bankruptcy
proceeding) or by prosecuting any claim in any foreclosure proceeding or other legal action or
proceeding commenced by the Lender, until the Loan has been paid in full. Company and the Property
Manager each agrees that all applicable statutes of limitation shall be tolled during any such
stand still period. Company and the Property Manager hereby irrevocably assign to the Lender,
during the term of the Loan, its right to vote in any bankruptcy or similar proceeding of Company
or Property Manager.
20.4 Property Manager shall provide to the Lender all reports and other information required
to be provided to Lender pursuant to the terms of the Loan Documents. All reporting covenants
contained in the Loan Documents, while constituting the obligation of Company thereunder, shall be
performed by Property Manager on behalf of Company.
20.5 Notwithstanding any provision contained herein to the contrary, in the event that the
Lender or its successors or assigns becomes the title owner of the property through foreclosure or
deed in lieu of foreclosure, Lender may terminate this Agreement with or without cause upon
providing Property Manager with not
13
less than thirty (30) days notice of its intent to so terminate this Agreement. In the event
that Lender terminates this Agreement in accordance with the provisions of this Section 20.5 Lender
shall not pay any termination fee or any other fees to Property Manager other than compensating
Property Manager for the services it rendered on behalf of Lender pursuant to this Agreement up to
the date of termination.
[Signatures to Follow on Next Page.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first
above written.
PROPERTY MANAGER: TNP PROPERTY MANAGER, LLC a Delaware limited liability company |
||||
| By: | XXXXXXXX NATIONAL PROPERTIES, LLC | |||
| a Delaware limited liability company | ||||
| Its: Sole Member | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Its: | CFO | |||
| COMPANY: TNP SRT SAN JACINTO, LLC, a Delaware limited liability company |
||||
| By: | TNP STRATEGIC RETAIL OPERATING | |||
| PARTNERSHIP, LP, | ||||
| a Delaware limited partnership Its: Sole Member |
||||
| By: | TNP STRATEGIC RETAIL TRUST, | |||
| INC., a Maryland corporation | ||||
| Its: General Partner | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxx | |||
| Its: | CFO, Secretary | |||
15
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
LEGAL PROPERTY DESCRIPTION
(See attached)
