Exhibit 10.113
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MANAGEMENT AGREEMENT
By and Between
ONE NINETY ONE PEACHTREE ASSOCIATES
and
C-H MANAGEMENT ASSOCIATES
dated
as of
February 1, 1988
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TABLE OF CONTENTS
Page
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ARTICLE I
ESTABLISHMENT OF MANAGERIAL RESPONSIBILITY
Section 1.1 Appointment of Manager.................................... 2
Section 1.2 Management Office......................................... 2
ARTICLE II
MANAGEMENT SERVICES TO BE PERFORMED BY MANAGER
Section 2.1 Preparation of Annual Budget............................ 2
Section 2.2 Independent Contractors................................. 6
Section 2.3 Service Contracts....................................... 7
Section 2.4 Maintenance and Repair of Premises...................... 8
Section 2.5 Insurance............................................... 9
Section 2.6 Collection of Moneys.................................... 10
Section 2.7 Manager Disbursements................................... 10
Section 2.8 Discounts............................................... 11
Section 2.9 Miscellaneous Duties of Manager......................... 12
ARTICLE III
TERM
Section 3.1 Term.................................................... 17
Section 3.2 Early Termination....................................... 17
Section 3.3 Payment to Manager in Event of Termination.............. 20
ARTICLE IV
COMPENSATION
Section 4.1 Management Fee.......................................... 20
ARTICLE V
MISCELLANEOUS
Section 5.1 Use and Maintenance of Premises.......................... 22
Section 5.2 Separation of the Venture's Moneys....................... 22
Section 5.3 Expenses of Manager...................................... 23
Section 5.4 Bond..................................................... 25
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Section 5.5 Notices.................................................. 25
Section 5.6 Entire Agreement......................................... 26
Section 5.7 Governing Law............................................ 27
Section 5.8 Severability............................................. 27
Section 5.9 Binding Effect........................................... 27
Section 5.10 Assignment by Manager.................................... 27
Section 5.11 Subordination............................................ 27
Section 5.12 Exculpation.............................................. 28
Section 5.13 Indemnity................................................ 30
Section 5.14 Waivers.................................................. 30
Section 5.15 Other Activities......................................... 30
Section 5.16 Representatives.......................................... 31
Section 5.17 Employees................................................ 31
ARTICLE VI
ARBITRATION
Section 6.1 Selection of Arbitrators................................. 32
Section 6.2 Rules; Fees and Expenses; Qualifications of Arbitrators.. 32
Section 6.3 Applicability of Article................................. 33
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MANAGEMENT AGREEMENT
THIS AGREEMENT made and entered into as of the lst day of February,
1988, by and among ONE NINETY ONE PEACHTREE ASSOCIATES, a Georgia general
partnership organized pursuant to a Joint Venture Agreement of even date (the
"Venture Agreement"), consisting of C-H Associates, Ltd., a Georgia limited
partnership ("CHV), and DIHC Peachtree Associates, a Georgia general partnership
("DIHC") (CHV and DIHC are sometimes referred to separately as a "Venturer" and
collectively as the "Venturers"), and CH MANAGEMENT ASSOCIATES, a Georgia
general partnership composed of Cousins Real Estate Corporation, a Georgia
corporation, and Xxxxxx X. Xxxxx, an individual residing in Houston, Texas,
doing business as Xxxxxx X. Xxxxx Interests (the "Manager").
W I T N E S S E T H :
WHEREAS, the Venture proposes to acquire fee simple or leasehold
title to certain parcels of real property (and improvements situated thereon and
appurtenances thereto) on Peachtree Street in Atlanta, Georgia (the "Property"),
and to construct thereon a multi-story building containing approximately
1,181,700 net rentable square feet of office and retail/commercial space
together with a related parking garage (the "Building"; the Property and the
Building being herein sometimes collectively referred to as the "Premises");
WHEREAS, the parties acknowledge and agree that Manager is
affiliated with CHV; and
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WHEREAS, the Venture has agreed to appoint Manager as the sole and
exclusive manager for the Building and Manager has agreed to serve as such, all
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, Manager and the Venture hereby agree as follows:
ARTICLE I
ESTABLISHMENT OF MANAGERIAL RESPONSIBILITY
Section 1.1 Appointment of Manager. The Venture hereby appoints
Manager, and Manager hereby accepts appointment, as sole and exclusive manager
of the Premises (for the respective periods provided herein) with the
responsibilities and upon the terms and conditions set forth herein.
Section 1.2 Management Office. As soon as practicable after "Shell
Completion" (as that term is defined in the Joint Venture Agreement), the
Venture shall, at its expense, provide Manager with furnished office space
within the Building, suitable in the Venturer's reasonable discretion to enable
Manager to perform its obligations hereunder efficiently and effectively.
ARTICLE II
MANAGEMENT SERVICES TO BE PERFORMED BY MANAGER
Section 2.1 Preparation of Annual Budget. Within 45 days after a
certificate of occupancy permitting occupancy of the Building is obtained and,
thereafter, in preliminary
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draft form not later than on September 1 and in final submission form not later
than on October 30 of each calendar year during the term of this Agreement,
Manager shall deliver to the Venture an operating business plan and a budget
("Annual Plan") setting forth in detail, as reasonably requested by the Venture,
on a monthly basis, revenues, expenses and debt service payments respecting the
Premises, anticipated during the Venture's next succeeding fiscal year (or
portion thereof), including without limitation the estimated amount of real
estate taxes, assessments, insurance premiums and maintenance and other expenses
relating to the Premises whether for operations or capital improvements (other
than anticipated initial leasehold improvements for tenants under leases entered
into by or on behalf of Venture) and an annual general operations plan for such
fiscal year. All financial reports and budgets shall be prepared in such form as
reasonably required by the Venture, and shall in any event, be in sufficient
detail as to permit the Managing Partner in the Venture to discharge its
budgeting and reporting obligations to the Venture and the Venturers. The Annual
Plan shall show, among other things, anticipated and proposed capital
expenditures (other than initial leasehold improvements for tenants) for the
ensuing year and the source of funds in respect thereto (including the projected
time and amount for any required advances by the Venture) and shall include a
rent roll for the Building, taking into account, without limitation, the general
condition of the Premises, rate of completion of any contemplated repairs to the
Premises, the then current occupancy level, lease expirations, and physical
condition of the Premises. Each Annual Plan shall also include a schedule of job
descriptions and requirements for any and all independent contractors and
employees of Manager serving the Premises, a reasonable estimate
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of wage rates and all other compensation to be paid such contractor or employee
and shall identify any contractor (or proposed contractor) serving the Premises
who is an Affiliate (as such term is defined in the Venture Agreement) of
Manager; provided, however, that the Annual Plan shall not contain expenses or
allocations (i) for home office expense or general corporate or administrative
charges, other than as expressly permitted hereunder, or (ii) any other costs or
expenses for which Manager is not entitled to reimbursement hereunder. Within
thirty (30) days after its receipt of the final submission form of such Annual
Plan, the Venture shall respond in writing to Manager approving the Annual Plan
subject to such changes as the Venture shall require, and such Annual Plan with
such changes by the Venture shall become the approved "Annual Budget" for such
succeeding fiscal year. Manager may proceed in accordance with the Annual Budget
for such succeeding fiscal year only if the same is approved by the Venture as
aforesaid. Except for the first full fiscal year, if for any fiscal year all or
any portion of an Annual Plan is not approved prior to December 31, the portions
of such Annual Plan which have been approved shall constitute the approved
Annual Budget with respect to those items or categories approved, and with
respect to those items or categories not approved, the amounts for such items or
categories which are contained in the Annual Budget for the then current fiscal
year shall carry over and continue to apply in regard to such items or
categories of operating expenses (but not for capital expenditures or initial
tenant finish expenditures) until approval by the Venture of new amounts for
such items or categories is obtained. Pending approval of particular items or
categories in an Annual Plan, Manager may continue all operations (but not
capital expenditures or tenant finish
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expenditures) attributable to such unapproved items or categories under the then
effective Annual Budget (as though the amounts for such items or categories
contained in the current Annual Budget had been approved for the next fiscal
year). Manager shall comply, except as hereinafter provided, in all respects
with each ap proved Annual Budget in the performance of its duties hereunder and
shall not, except as hereinafter provided, during the period covered by such
Annual Budget incur any expense in the management, operation or maintenance of
the Property not provided for in such Annual Budget, unless otherwise approved
by Venture from time to time.
The budgets included in the Annual Budget shall distinguish between
(i) costs and expenses of management, maintenance and operations which are not
"capital expenditures" ("non-capital expenses") and (ii) costs and expenses of
management, maintenance and operation which are "capital" in nature (the
"capital expenses"). Without the Venture's consent, Manager shall not incur any
expense for any major line item capital expense which exceeds the amount
budgeted for such capital expense. Without the Venture's consent, Manager shall
not incur any expense for any major line item of non-capital expenses (except
real estate taxes, utilities serving the Property, and insurance premium
amounts) which exceeds the budgeted amount of such major line item by more than
ten percent (10%); provided, however, that Manager may freely pay all real
estate taxes, charges for public utilities serving the Premises, and insurance
premiums (for insurance approved by the Venture) and Manager may incur
obligations to perform tenant construction pursuant to leases approved by the
Venture and may incur expenses to provide additional services to tenants, if the
tenant
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is contractually obligated to promptly reimburse the Venture for the cost
thereof. The term "major line item" means one identified as such in an approved
Annual Budget. In the event that Manager shall at any time determine that an
expenditure is required that will not conform to the foregoing guidelines,
Manager shall notify the Venture in writing of such expenditure, and the Venture
shall within five (5) business days after receipt of such notice to reply to
such notice. Unless the Venture shall reply to such notice by approving the
expenditure within said five (5) business day period, the Venture shall be
deemed not to consent to such expenditure. Notwithstanding the foregoing,
Manager may make all expenditures necessary, whether or not within the
guidelines set forth hereinabove or provided for in the Annual Budget, for any
expenditure of an emergency nature as provided in Section 2.4 hereof. At any
time that Manager determines that there is not sufficient income to cover
current operating expenses, it shall promptly notify the Venture. Manager shall
further provide such other financial information respecting actual operations of
the Property as is reasonably requested by the Venture.
As used in this Agreement, the fiscal year of the Venture shall be
the calendar year unless and until the Venture gives Manager written notice of
any change thereto in the manner provided for herein.
Section 2.2 Independent Contractors. Pursuant to the Annual Budget,
Manager shall investigate, contract with, pay, supervise and discharge any
personnel required for the routine maintenance and operation of the Premises on
a day-to-day basis. Such personnel shall in every instance be independent
contractors or employees of Manager or its affiliates and shall
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not be employees of the Venture. After any major personnel (e.g. building
superintendent, engineer, architect, attorneys, etc.) have been engaged to
perform personal or professional services, Manager shall give the Venture notice
thereof and the Venture may at any time thereafter require Manager to terminate
the contracts of such persons serving the Premises whom the Venture, in its sole
discretion, deems unsatisfactory (provided that the Venture shall be responsible
for, and shall indemnify Manager against any loss, cost, liability or expense,
including reasonable attorneys fees and reasonable severance pay, incurred by
manager as a result of any such termination if the same is actionable by such
terminated personnel and if Manager notifies the Venture of its objection to
such termination prior thereto). Such employees who handle or who are
responsible for funds belonging to the Venture shall be insured by fidelity
insurance in an amount and with a company approved from time to time by the
Venture as set forth in Section 5.4 hereof. Except as provided in Section 5.3
below, all salaries, wages and other compensation of personnel contracted with
by Manager hereunder shall be expenses of the Venture which shall be paid by
Manager from funds of the Venture or reimbursed to Manager by the Venture
pursuant to the terms hereof. Manager understands and agrees that its own
relationship to the Venture is that of independent contractor and that it will
not represent to anyone that its relationship to the Venture is other than that
of independent contractor.
Section 2.3 Service Contracts. (a) Manager shall make, when
necessary, in the name of the Venture, contracts for water, electricity, gas,
fuel, oil, telephone, vermin extermination, elevator, trash removal, janitorial
service, landscaping, security service and
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other necessary services, or such of them as Manager shall deem reasonably
advisable in accordance with the Annual Budget; provided that each such contract
shall be for no longer than a one-year term and shall be cancellable on no more
than thirty (30) days notice without penalty unless otherwise approved by the
Venture. Manager shall also place orders in the name of the Venture for such
equipment, tools, appliances, materials and supplies as are necessary properly
to maintain the Premises, subject to the limitations of the current Annual
Budget approved by the Venture.
(b) Manager shall supervise the services of an operator for the
parking garage forming a part of the Premises, provided that the identity of
such operator, and the terms of the contract for such services, shall be subject
to the approval of the Venture.
Section 2.4 Maintenance and Repair of Premises. Manager shall use
its best efforts to cause the Building, parking garage, appurtenances and
grounds of the Property to be maintained in accordance with standards acceptable
to the Venture, including within such maintenance, without limitation thereof,
supervision of the installation and removal of tenant improvements (as provided
in, and subject to Section 2.9 hereof), interior and exterior cleaning, painting
and decorating, plumbing, carpentry, and such other normal maintenance and
repair work as may be desirable, subject to limitations of the current Annual
Budget approved by the Venture and any other limitations imposed by the venture
in addition to those contained herein. For any category of repair or
replacement, the expense or cost incurred shall not exceed the amount allocated
thereto in the current Annual Budget (subject to the variances allowed by
Section 2.1 hereof), excepting, however, that emergency repairs
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immediately necessary to secure the preservation and safety of the Premises or
to avoid the suspension of any service to the Premises or to avoid danger to
life or property may be made by Manager without such consent or authority even
if in excess of the amounts, if any, specified in the current Annual Budget,
provided Manager shall first make reasonable attempts to contact the Venture.
Notwithstanding such authority as to emergency repairs, it is understood and
agreed that Manager will confer as soon as possible with the Venture regarding
every such expenditure. Manager shall assure that any contractor performing work
on the Premises maintains insurance satisfactory to the Venture and any
mortgagee of the Premises, including but not limited to workmen's compensation
insurance, employees' liability insurance and insurance against liability for
injury to persons and property arising out of all of such contractor's
operations, any subcontractors' operations, and the use of owned, non-owned or
hired equipment, including automotive equipment in the pursuit of all such
operations.
Section 2.5 Insurance. Manager shall, if requested by the Venture,
supervise the procurement of or assist the Venture in procuring and maintaining
garage keeper's liability insurance and such other insurance for the Premises,
with companies and through brokers agreed upon by the Venture, of such kind and
amounts as the Venture shall from time to time be required to carry pursuant to
the provisions of applicable agreements with third parties, and of such other
kind and amounts as required in the Venture Agreement of the Venture (the
"Venture Agreement") or as the Manager shall from time to time be directed by
the Venture.
Section 2.6 Collection of Moneys. Manager shall use its best efforts
to collect all rent and other charges due from tenants, licensees,
concessionaires and any others in
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consequence of the authorized operation of facilities in the Premises and
otherwise due the Venture with respect to the Premises. The Venture authorizes
Manager to request, demand, collect, receive and receipt for all such rent and
other charges. With the prior written consent of the Venture, Manager may
institute legal proceedings and engage legal counsel (approved by the Venture)
in the name of the Venture, for the collection of overdue rents and other
charges and for the dispossession of tenants and other persons from the
Premises. The Venture will be informed as soon as possible respecting any legal
action which the Manager proposes to initiate for and on behalf of the Venture.
Any expense incurred in connection therewith shall be deemed an operating
expense of the Premises. All moneys collected by the Venture shall be forthwith
deposited in the Depository Account described in Section 5.2 below.
Section 2.7 Manager Disbursements. Except as otherwise directed by
the Venture, Manager shall from the funds on deposit in the operating Account
described in Section 5.2 below, cause to be disbursed the amounts necessary to
pay regularly and punctually amounts due and payable as operating expenses of
the Premises authorized to be incurred under the terms of the Agreement,
including without limitation, payment of sums due on any mortgage loan affecting
the Premises, payment prior to delinquency and prior to the addition thereon of
interest or penalties of all real property taxes and assessments and other taxes
levied or assessed against the Premises, all rents, insurance premiums and other
impositions applicable to the Premises, the fees of the "Leasing Agent" under
that certain Leasing Agreement of even date herewith between the Venture and C-H
Leasing Associates, a
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Georgia general partnership and the Manager's fee provided for in Article V
hereof. After disbursement as herein specified, any balance remaining shall be
disbursed or transferred as generally or specifically directed from time to time
by the Venture. Manager shall have no obligation to pay any of the
aforementioned expenses or costs unless there are sufficient funds in the
Operating Account described in Section 5.2 below or the funds shall be supplied
to Manager by the Venture. In the event that at any time there are insufficient
funds on hand to meet such operating expenses, Manager shall promptly notify the
Venture, which shall supply such funds to the extent required to pay amounts
within the then current approved Annual Budget or otherwise agreed to by the
Venture. In no event shall Manager be entitled to advance any funds as a loan to
the Venture for any purpose, and the repayment of any funds so advanced shall
not be an obligation of the Venture. All checks to Manager for reimbursement of
expenses in excess of the amount provided therefor in the approved Annual Budget
shall be co-signed by a duly authorized representative of a Venturer of the
Venture.
Section 2.8 Discounts. Manager shall (unless in its reasonable
judgment such discounts, commissions or rebates are not advisable) use good
faith efforts to secure for and credit to the Venture any discounts, commissions
or rebates obtainable as a result of any purchase of goods or services or as a
result of other activities undertaken pursuant to this Agreement. Should Manager
perform any services to tenants which are not required in their leases and for
which a separate charge is made, then all such separate charges shall be
retained in the Operating Account described in Section 5.2 for the account of
the Venture and, to the extent required, used to pay for the services provided.
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Section 2.9 Miscellaneous Duties of Manager.
(a) Books and Records and Monthly Reports. Manager shall keep all
books of account and other records required by the Venture, keep vouchers,
statements, receipted bills and invoices and all other records in such form as
may be approved by the Venture, covering all collection, disbursements, and
other data in connection with the Premises; permit the Venture, or any person
designated by any Venturer, at any reasonable time, to audit the books, records
and accounts of Manager relating to the Premises, and Manager will exhibit such
books, records and accounts to any person designated by any Venturer for that
purpose, which accounts and records relating to the Premises, including all
correspondence and leases, shall be the property of the Venture and, upon any
termination of the appointment of Manager, shall be surrendered to the Venture
without charge therefor. On or before the 15th day of each month during the term
of this Agreement, Manager shall render to the Venture a detailed written report
(hereinafter called the "Monthly Report") covering the operations for the
preceding full calendar month. The Monthly Reports shall include designation of
all receipts and disbursements during such period (and shall set forth an
accurate list of accounts receivable and accounts payable, in such detail as the
Venture may require) and moneys retained in the Operating Account as of the last
day of the preceding calendar month. Such report shall be in form and substance
satisfactory to the Venture, and shall include, without limitation, a copy or
facsimile of all notices received from any mortgagee or land lessor with respect
to payments made to such mortgagee or land lessor in such preceding calendar
month, a brief narrative summary highlighting the past month's operation, a
statement setting forth the
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variances between actual operating results and the Annual Budget then in effect,
and a detailed rent roll.
(b) Other Reports. Manager shall prepare and deliver to the Venture
from time to time such other reports, statements and information concerning the
operation, management, performance and condition of the Premises as the Venture
may request.
(c) Annual Report. Within forty-five (45) days after the end of each
fiscal year, Manager shall deliver to the Venture an Income and Expense
Statement, showing the results of operations of the Premises for that fiscal
year, all prepared in accordance with generally accepted accounting principles
consistently applied, and shall cooperate with the Venture's independent
auditors in preparation of their annual audit and preparation of tax returns on
behalf of the Venture. Manager shall also furnish the Venture, within said
forty-five (45) day period, with a detailed list of all accounts receivable and
accounts payable as of the end of that fiscal year and with such other
information as the Venture shall reasonably request, all in such detail as the
Venture may reasonably require.
(d) Tenant Complaints. Manager shall serve as liaison between the
Venture and tenants and maintain businesslike relations with tenants, whose
service requests shall be received, logged and considered in systematic fashion
in order to show the action taken with respect to each. Complaints of a serious
nature shall, after thorough investigation, be reported to the Venture with
appropriate recommendations. Manager shall use all reasonable efforts to secure
full compliance by the tenants of the Premises with the terms and conditions of
their respective leases.
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(e) Returns Required by Law. Except when same are legally required
to be filed by the Venture, Manager shall execute and file punctually, when due,
all forms, reports, and returns required by law relating to the employment of
personnel and the operation of the Premises which shall specifically not include
federal and state income tax returns.
(f) Compliance with Legal Requirements. Manager shall use its best
efforts to ensure that the actions taken by Manager for or on behalf of the
Venture comply with the Governmental Documents (as defined in the Venture
Agreement) and with any and all orders or requirements affecting the Premises by
any federal, state, county, municipal or other authority having jurisdiction
thereover, and orders of the Board of Fire Underwriters or other similar bodies,
subject to the same limitations contained in Section 2.4 hereof in connection
with the making of repairs and alterations. Manager shall promptly, and in no
event later than the close of the next business day following its receipt, give
written notice to the Venture of any such order or notice of requirements.
Manager, however, shall not take any such action as long as: (i) the Venture is
contesting any such order or requirement or (ii) the Venture requests Manager in
writing not to take such action; provided that the Venture shall not make any
such request if the failure to take such action would, in Manager's reasonable
judgment, subject Manager to any criminal liability, and with respect to any
other failure to act the Venture shall indemnify Manager against any and all
loss, cost liability, damage or expense (including reasonable attorney's fees)
suffered or incurred by Manager by reason of such failure to act.
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(g) Claims for Tax Abatements and Eminent Domain Awards. When
requested by the Venture from time to time, Manager shall, without charge or
reimbursement, except for out-of-pocket expenses, render advice and assistance
to the Venture in the negotiation and prosecution of all claims for the
abatement of property and other taxes affecting the Premises and for awards for
taking by eminent domain affecting the Premises.
(h) Supervision of Repairs and Alterations. Manager shall use
reasonable efforts to supervise the performance of all matters coming within the
terms of this Agreement, including direct observation, inspection and
supervision of all repairs, decorations and alterations during the progress
thereof and shall make final inspection of the completed work and approve bills
for payment; provided, however, Manager may, in its reasonable discretion and
unless otherwise directed by the Venture, withhold payments and contest in good
faith work done on the Premises, provided that such contest is not in violation
of any mortgage encumbering the Premises or the Governmental Documents. Manager
shall use its best efforts to obtain the necessary receipts, releases, waivers,
discharges and assurances to keep the Premises free from mechanics' and
materialmen's liens and other claims.
(i) Management of Premises. Manager shall, generally, take all
actions reasonably necessary to protect and preserve the Premises and to manage
and operate the Premises in an efficient first-class manner and shall, at all
times, maintain an organization sufficient to enable it to perform all of its
obligations and functions under this Agreement.
(j) Tenant Improvements. Upon request by the Venture, Manager shall
supervise and contract for tenant finishing work (other than for the initial
tenant finishing
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work), and alterations when new tenants take occupancy in the Building and shall
supervise and inspect modifications and alterations to existing tenant space
when requested for and paid for by an existing tenant. Manager shall be
reimbursed for any additional or extraordinary expenses incurred for such
supervisory services, subject, however, to the approved Annual Budget and the
leasing and marketing plan for the Premises then in effect, and shall be
entitled to collect construction management and supervision fees from tenants in
the Building in accordance with schedules from time to time approved by the
Venture.
(k) Cooperation. Should any claims, demands, suits or other legal
proceedings be made or instituted by any third party against the Venture or any
Venturer (as a partner in the Venture) which arise out of any matter relating to
the Premises or this Agreement or the Manager's performance hereunder, the
Manager shall give the Venture all pertinent information and reasonable
assistance in the defense or disposition thereof. The obligation of Manager set
forth herein shall survive the termination of this Agreement.
ARTICLE III
TERM
Section 3.1 Term. The term of this Agreement shall commence on the
date hereof and shall expire on the earlier to occur of (i) the winding up of
the Venture in accordance with the Venture Agreement, (ii) the sale of the
Premises, or all of the percentage interests in the Venture, by the Venture to
any third party, or (iii) the fifteenth (15th) anniversary of the date of the
commencement of the term, unless this Agreement is sooner
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terminated pursuant to Section 3.2 hereof or otherwise. Upon the expiration or
earlier termination of this Agreement, Manager shall: (1) surrender and deliver
to the Venture all rents and income of the Premises including the Depository
Account and Operating Account referred to in Section 5.2 hereof; (2) deliver to
the Venture as received any monies of the Venture collected or received by
manager after termination hereof; (3) deliver to the Venture all books, records,
materials, supplies, keys, contracts and other documents and statements relating
to the Premises; (4) assign such existing contracts relating to the operation
and maintenance of the Premises as the Venture shall require; and (5) generally
cooperate with the Venture in accordance with Section 2.9(k).
Section 3.2 Early Termination. (a) During the term of this
Agreement, this Agreement shall automatically be terminated for cause, as
"cause" is hereafter defined, upon five (5) days' written notice to Manager.
"Cause" for termination by the Venture shall mean the continuance, for more than
thirty (30) days (or, if such curable event cannot be cured in such period of
time, then such additional period of time as is reasonably necessary to cure
same, provided Manager commences such cure within such thirty (30) day period
and thereafter diligently prosecutes to completion such cure) after delivery of
written notice by the Venture (or any Venturer) to Manager of one or more of the
following events specifying in reasonable detail the nature of the default:
(i) Manager shall fail to perform or observe any material covenant,
condition or term in this Agreement;
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(ii) In the reasonable judgment of the Venture (or the Venturer
giving the written notice), Manager shall fail to exercise the level of
managerial skill, knowledge, judgment and practice required for the
operation of a major, first-class office with related retail space and
such failure shall have had, or be calculated in the reasonable discretion
of the Venture to have, a material adverse effect on the Premises or the
Venture.
(iii) Manager shall engage in conduct under this Agreement which
constitutes fraud or breach of trust;
(iv) Manager shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall commence a case under the bankruptcy code, or
shall file a petition or answer or consent seeking reorganization,
readjustment, arrangement, composition or similar relief under the federal
bankruptcy laws, or any other similar applicable federal or state law, or
shall consent to or fail reasonably to oppose any such proceeding, or
shall consent to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of a substantial part of its
property, or shall make a general assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or corporate action shall be taken by Manager in furtherance
of any of the aforesaid purposes;
(v) A decree or order by a court of competent jurisdiction shall
have been entered adjudging Manager bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, readjustment,
arrangement composition or similar relief
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for Manager under the federal bankruptcy laws, or any other similar
applicable federal or state law, and such decree or order shall have
continued undischarged or unstayed for a period of sixty (60) days; or
a decree or order of a court having jurisdiction for the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of Manager or a substantial part of its property, or the
winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have remained in force, undischarged and
unstayed for a period of sixty (60) days;
In the event of any dispute between DIHC and CHV or between DIHC and
Manager as to whether or not the Venture has "cause" to terminate this Agreement
pursuant to the provisions of this Section 3.2, such dispute shall be determined
by arbitration pursuant to Article VI hereof.
(b) In addition to any and all other termination rights contained
herein, either Manager or the Venture may elect to terminate this Agreement (i)
upon five (5) days notice to the other if all or substantially all of the
Building is destroyed or condemned and the same is not rebuilt; or (ii) upon
twelve months notice to the other if neither a "Hines Affiliate" nor a "Cousins
Affiliate" (as such terms are defined in the Venture Agreement) owns any
interest in CHV.
Section 3.3 Payment to Manager in Event of Termination. In the event
this Agreement is terminated under Section 3.2 hereof, Manager shall be entitled
only to that portion of the management fee earned pursuant to Article IV of this
Agreement through the earlier of the date Manager actually ceases performing its
services hereunder or the effective
20
date of such termination, together with reimbursement of expenses and reasonable
employee severance pay as herein provided, in full satisfaction of the Venture's
obligation to Manager for fees under this Agreement; provided, however, that
after being notified in writing of an event for which this Agreement may be
terminated for "cause" under clauses (i), (ii) or (iii) of Section 3.2(a), the
management fee and expenses payable to Manager shall be withheld until such time
as such "cause" is cured or this Agreement is terminated. In the event this
Agreement is so terminated, the Venture shall assume the obligations under
contracts entered into by Manager for the benefit or on behalf of the Venture
pursuant to its authority to do so under this Agreement.
ARTICLE IV
COMPENSATION
Section 4.1 Management Fee. (a) Commencing with the date on which
the first tenant has occupied space in the Premises (excluding occupancy for the
purpose of constructing tenant improvements), but in no event earlier than Shell
Completion (as defined in the Venture Agreement), and continuing during the term
of this Agreement, the Venture shall pay Manager monthly in arrears, a
management fee equal to one twelfth (1/12) of an amount equal to the sum of (i)
twenty cents ($0.20) per square foot with respect to all net leasable square
feet in the Building plus (ii) an additional fifty cents ($0.50) per square foot
with respect to all such net leasable square feet in the Building which are
occupied by tenants as of the last day of the preceding calendar month (with the
effect that the total management fee
21
with respect to occupied space shall be seventy cents ($0.70) per square foot).
Each of the amounts set forth in clauses (i) and (ii) of the preceding sentence
shall be increased effective as of January 1 of each calendar year commencing
with January 1, 1993, as follows: (a) with respect to the first such adjustment,
an amount equal to 4.5% of the applicable per square foot amounts in effect for
the preceding year; and (b) with respect to all other adjustments, an amount
equal to 4.5% of the applicable per square foot amounts in effect for the
preceding year. The per square foot management fee, as so adjusted, shall be
rounded to the nearest one hundredth of a cent. A tenant will be deemed to
occupy space if it is conducting business from its premises or has commenced the
payment of rent (e.g., construction of leasehold improvements and moving of
furniture along shall not constitute occupancy). Upon receipt of each
installment of such management fee, Manager shall promptly pay to DIHC
Management Corporation 20% of such amount as a consulting fee.
(b) Notwithstanding the provisions of Section 4.1(a), in no event
shall the management fee payable with respect to any lease of space in the
Premises to the law firm of King & Spalding exceed the amount charged to the
tenant under such lease which is attributable to and allocated for property
management costs and fees.
(c) In the event Manager fails on more than five occasions during
the Term to provide the monthly report required by Section 2.09(a) to the
Venture within the time therein specified, and has been so notified by the
Venture ("notice" for the purpose of this sentence means any written
communication from a Venturer) the Venture shall not be
22
thereafter obligated to pay, and the Manager shall not collect any monthly
management fee, until one business day after receipt by the Venture of the
report required by Section 2.09(a).
ARTICLE
MISCELLANEOUS
Section 5.1 Use and Maintenance of Premises. Manager agrees to use
reasonable efforts not to permit the use of the Premises for any purpose which
might void any policy of insurance held by the Venture or Manager or render any
loss thereunder uncollectible, or which would be in violation of any law,
ordinance, by-law or governmental or other restrictions.
Section 5.2 Separation of the Venture's Moneys. The Venture shall
establish and maintain a bank account at an Atlanta, Georgia bank or other
depository approved by the Venture for the deposit of all revenues arising out
of the Premises (the "Depository Account"). Manager shall promptly deposit all
revenues, as same are collected, in the Depository Account and only the
authorized representatives of the Venture shall be able to withdraw funds from
the Depository Account. Manager shall establish and maintain an additional bank
account at an Atlanta, Georgia bank of the Venture's choosing, for the purpose
of maintaining those funds necessary to the operation of the Premises (the
"Operating Account"). The Venture shall from time to time, upon the advice of
Manager, deposit into the Operating Account, sufficient funds to cover the cost
and expense of the maintenance and operation of the Premises, including a
reasonable working capital reserve, consistent with the current approved Annual
Budget, of
23
approximately one month's operating expenses exclusive of real estate taxes and
non-cash items. Funds may be withdrawn from the Operating Account upon the
signature of duly authorized representatives of Manager or any Venturer of the
Venture.
Section 5.3 Expenses of Manager. The Venture shall reimburse Manager
for direct expenses of Manager incurred in connection with the maintenance and
operation of the Premises and the performance of its other duties under this
Agreement, including the wages, salary and other compensation of any on or off
site property management personnel (but not including any executive
compensation), the costs of any management office approved by the Venture,
reasonable travel and entertainment expenses incurred in connection with the
management of the Premises as approved in the Annual Budget, and a reasonable
allocation of the cost of any liability insurance or fidelity bonds required to
be maintained by Manager hereunder which specifically cover acts of Manager, its
partners, and/or their respective agents or employees, in accordance with the
approved Annual Budget; provided, however, the Venture shall not be obligated to
reimburse Manager for any expenses for office equipment, office supplies or
overhead expenses of Manager incurred in its general offices, for any salaries
of any executives or any supervisory personnel of Manager or for any salaries or
wages allocable to time spent on matters other than the Premises.
Notwithstanding the foregoing, with respect to any person whose salary would
otherwise be reimbursable hereunder such salary shall not cease to be
reimbursable solely because such person becomes an officer or comes to hold an
executive title during the term hereof, so long as such person continues to
provide the supervisory or property management services for which reimbursement
was
24
previously allowed. In addition to the foregoing, the Venture shall reimburse
Manager for reasonable costs of off-site data processing and accounting services
provided to Manager by affiliates of Manager, which services shall be
compensated for work actually performed with respect to the Project at rates
approved by the Venture in advance or approved in the Annual Budget; provided,
that the cost of such services shall be no greater than the cost to obtain
similar services from unaffiliated third-party providers of such services, and
in no event shall Manager or any affiliate of Manager receive any fee, "xxxx-up"
or other profit from the performance of such services other than the costs
actually charged for such services. All payments to be made by Manager hereunder
shall be made by check drawn on the Operating Account except xxxxx cash items
not exceeding $1,000.00, which may be paid from a fund to be maintained by
Manager for such purposes. Manager shall not be obligated to make any advance to
or for the account of the Venture or to pay any sums, except out of funds held
in the Operating Account, nor shall Manager be obligated to incur any liability
or obligation for the account of the Venture without assurance that the
necessary funds for the discharge thereof will be provided; and, if Manager
shall advance its own funds to meet authorized expenses of the Venture in
furtherance of its duties hereunder, the Venture shall promptly reimburse
Manager therefor together with interest thereon from the date of such advance at
the rate announced from time to time by Trust Company Bank, Atlanta, Georgia as
its prime rate (regardless of whether such rate is actually changed to any
particular customer or group of customers)
25
Section 5.4 Bond. Manager shall maintain, at the expense of the
Venture, comprehensive dishonesty, disappearance and destruction insurance with
an insurer satisfactory of the Venture, in such amount and from approved by the
Venturer providing insurance with regard to the faithful accounting for funds of
the Venture collected or received by Manager.
Section 5.5 Notices All notices, demands requests or other similar
communications required or permitted hereunder must be in writing and shall be
deemed and received when personally delivered (which may include delivery by
commercial courier service or upon deposit in the United States mail, certified
or registered mail, return receipt requested, postage prepaid, and addressed to
the respective parties at the addresses specified below, or at such other
address as thay shall each specify in a notice addressed and mailed as
hereinabove set forth;
To the Venture C-H Associates, Ltd
c/o Xxxxxx X. Xxxxx Interests
Xxx Xxxxxxx Xxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: X.X. Xxxxxxxx, III
DIHC
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
26
with copies to: Xxxxxxxxxx, Xxxxxx & Xxxxxxx
Xxxxxxx Xxxxxxxxx Xxxxxx
Xxxxx 000, Xxxxx Xxxxx
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: H. Xxxxxx Xxxxx, Esq.
Cousins Real Estate Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
To Manager: C-H Management Associates
c/o Xxxxxx X. Xxxxx Interests
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: X. X. Xxxxxxxx, III
Cousins Real Estate Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Section 5.6 Entire Agreement. This Agreement constitutes the entire
agreement between the Venture and Manager relating in any manner to the subject
matter of this Agreement. No prior agreement or understanding pertaining to the
same shall be valid or of any force or effect, and the covenants and agreements
herein cannot be altered, changed or supplemented except in writing signed by
the Venture and Manager.
27
Section 5.7 Governing Law. This Agreement is made pursuant to, and
all of the rights and obligations of the parties hereto and all of the terms and
conditions herein shall be construed in accordance with and governed by, the
laws of the State of Georgia, U.S.A.
Section 5.8 Severability. If any clause or provision of this
Agreement is illegal, invalid or unenforceable under present or future laws
effective during the term hereof, then the remainder of this Agreement shall not
be affected thereby, and in lieu of each clause or provision of this Agreement
which is illegal, invalid or unenforceable, there shall be added, as part of
this Agreement, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and as may be
legal, valid and enforceable.
Section 5.9 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, heirs and assigns.
Section 5.10 Assignment by Manager. The rights and obligations of
Manager hereunder shall not be assignable without the prior written consent of
the Venture except that the rights and obligations of Manager may be assigned by
Manager to a "Cousins Affiliate", a "Hines Affiliate" or an "Affiliate" of CHV
(as such terms are defined in the Venture Agreement).
Section 5.11 Subordination. This Agreement and all fees due from the
Venture to Manager pursuant hereto shall be subject and subordinate in all
respects to (i) that certain Deed to Secure Debt, Security Agreement and
Assignment of Leases and Rents of even date herewith from the Venture to DIHC
Finance Corporation ("DIHC Finance") securing, among
28
other things, the repayment of that certain "A" Note (the ""A" Note") of even
date herewith from the Venture payable to the order of DIHC Finance in the
amount of $145,000,000.00, together with any and all extensions, modifications,
amendments or replacements thereof hereafter made or entered into (the ""A"
Mortgage"), (ii) that certain Deed to Secure Debt, Security Agreement and
Assignment of Leases and Rents of even date herewith from the Venture to DIHC
Finance securing, among other things, the repayment of that certain "B"
Construction Note (the ""B" Note") of even date herewith from the Venture
payable to the order of DIHC Finance in the amount of $145,000,00.00 together
with any and all extensions, modifications, amendments or replacements thereof
hereafter made or entered into (the ""B" Mortgage") (the "A" Mortgage and the
"B" Mortgage are sometimes herein referred to collectively as the "Original
Mortgages"), (iii) any other mortgage or deed to secure debt upon the Premises
or any portion thereof now or hereafter executed by the Venture, together with
any and all extensions, modifications, amendments or replacements thereof, and
(iv) any collateral assignment of rents due under the leases of space in any
improvements on the Premises. This provision shall be self-executing but Manager
shall, upon request, execute such instruments as may reasonably be requested by
the Venture, or any such mortgagee or lender to evidence such subordination.
Section 5.12 Exculpation. Notwithstanding anything in this Agreement
to the contrary, Manager and the Venture accept and agree that each of the
covenants, undertakings and agreements herein made on the part of Manager or the
Venture, while in the form purporting to be covenants, undertakings and
agreements of Manager or the Venture, are,
29
nevertheless, made and intended not as personal covenants, undertakings and
agreements by Manager's or the Venture's partners (direct or indirect) or for
the purpose of binding their respective partners personally or the assets of
their respective partners but are made and intended for the purpose of binding
only the interests of the partners in Manager or the Venture in the assets of
the Venture and as to Manager, the fees payable to it hereunder, and that no
other personal liability or personal responsibility is assumed by, nor shall at
any time be asserted or enforceable against the partners of Manager or the
Venture (direct or indirect) and their respective heirs, legal representatives,
successors and assigns on account of this Agreement or on account of any
covenant, undertaking or agreement of Manager or the Venture and their
respective partners in this document contained, all such personal liability and
personal responsibility, if any, being expressly waived and released by the
parties and the parties further agree not to seek or enforce any judgments
(including but not limited to specific performance, deficiency judgments, and
any and all other judgments) obtained against Manager or the Venture or against
the partners in Manager or the Venture beyond the interests set forth above.
The parties further acknowledge and agree that no officer, director,
stockholder or agent of any corporate Venturer or corporate partner (direct or
indirect) of Manager or any Venturer shall have any personal liability for any
Venturer's obligations hereunder.
Section 5.13 Indemnity. (a) The Venture shall indemnify the Manager
and save it harmless from and against all third party claims, losses and
liabilities arising out of or in connection with the performance by Manager of
its duties and obligations hereunder, and all
30
costs, fees and reasonable attorneys' fees in connection therewith unless such
claims, losses or liability result from Manager's fraud, gross negligence or
willful misconduct.
(b) Manager shall defend, indemnify and hold the Venture (and the
Venture's partners) harmless from and against any and all third party claims,
demands, losses, damages or liabilities (including, but not limited to, all
costs and reasonable attorneys' fees in connection therewith) incurred by the
Venture or its partners by reason of the fraud, gross negligence or willful
misconduct of Manager hereunder.
Section 5.14 Waivers. No delay or omission by either party in
exercising any right or power accruing upon the noncompliance or failure or
performance by the other party hereto of any provisions of this Agreement shall
impair any such right or power or be construed to be a waiver thereof. A waiver
by either party of any of the covenants, conditions or agreements hereof to be
performed by the other must be in writing and signed by the party who is waiving
such covenants, conditions or agreements.
Section 5.15 Other Activities. Notwithstanding any other provisions
of this Agreement to the contrary, Manager may engage in or possess an interest
in other business ventures of every nature and description and in any vicinity
whatsoever, including without limitation the ownership, operation, management
and development of real property, and the Venture shall have no rights in or to
such independent ventures or to any profits therefrom. Any of such activities
may be undertaken with or without notice to or participation therein by the
Venture, and the Venture hereby waives any right or claim that it may have
against the Manager with respect to the income or profits therefrom or the
effect of such activity on the
31
Premises; provided, however, that Manager shall act as a reasonably prudent
manager in not allowing the foregoing activities to unreasonably interfere with
its obligations under this Agreement. Furthermore, nothing contained herein
shall be deemed to require the personal services of Xxxxxx X. Xxxxx or Xxxxxx
Xxxxxxx, individually.
In performance of any of its obligations and duties hereunder,
manager shall take such action as it considers appropriate in its good faith
business judgment and actions taken by Manager in its good faith business
judgment shall satisfy the obligation of Manager under this Section.
Section 5.16 Representatives. Manager may act through one or more
representatives it may appoint to oversee and make decisions for Manager. Upon
notice, Manager may at any time and for any reason substitute one or more
persons as its authorized representatives. If a particular representative shall
die, retire, withdraw for any reason or become disabled, Manager shall designate
a replacement representative within the following ten business days. The Manager
initially designates as its authorized representatives Xxxxxxx X. Xxxxxxxx and
Xxxxx X. Xxxxx.
Section 5.17 Employees. Manager has no employees and intends to have
no employees. Accordingly, the Venture agrees that Manager shall perform its
duties hereunder by delegating the same to the partners of Manager and/or their
affiliates.
ARTICLE VI
ARBITRATION
32
Section 6.1 Selection of Arbitrators. Whenever in this Agreement it
is provided that a dispute shall be determined by arbitration, the arbitration
shall be conducted as provided in this Article. The party desiring such
arbitration shall give written notice to that effect to the other, specifying
the dispute to be arbitrated and the name and address of the person designated
to act as the arbitrator in its behalf. Within ten (10) days after said notice
is given, the other party shall give written notice to the first party,
specifying the name and address of the person designated to act as arbitrator on
its behalf. If the second party fails to notify the first party of the
appointment of its arbitrator as aforesaid by the time above specified, then the
first arbitrator shall determine the dispute. The arbitrators so chosen shall,
within ten (10) days after the second arbitrator is appointed, appoint a third
arbitrator and if they cannot agree upon said appointment, the third arbitrator
shall be appointed by the presiding judge of the Xxxxxx County Superior Court,
or his designee. The three arbitrators shall meet and decide the dispute and
tender a written decision to the parties within 30 days after the appointment of
the third arbitrator. A decision in which two of the three arbitrators concur
shall be binding and conclusive upon the parties and shall not be subject to
appeal, and judgment thereon may be entered in any court having jurisdiction
thereof.
Section 6.2 Rules; Fees and Expenses; Qualifications of Arbitrators.
In designating arbitrators and in deciding the dispute, the arbitrators shall
act in accordance with the commercial arbitration rules then in force of the
American Arbitration Association (or any successor thereto), subject, however,
to such limitations or directions as may be placed upon them by the provisions
of this Agreement. Each party shall pay the fees and expenses of its
33
respective attorney and arbitrator and both shall share equally the fee and
expenses of the third arbitrator, if any, as well as any fees payable to the
American Arbitration Association or its successor. No arbitrator shall be a
person who is or has been at any time a partner, officer, director or employee
of either party or any Affiliated Entity thereof (as defined in the Venture
Agreement), and each such arbitrator shall have had at least seven (7) years
experience in the management of office buildings in the City of Atlanta,
Georgia. The arbitrators shall consider all testimony and documentary evidence
which may be presented at any hearing as well as relevant facts and data which
they may discover by investigation and inquiry outside of such hearings. Each
party shall have the right to be represented by counsel and to cross examine
witnesses.
Section 6.3 Applicability of Article. The obligation of the parties
to submit a dispute to arbitration is limited to disputes arising under those
provisions of this Agreement which specifically provide for arbitration.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
under seal as of the date first above written.
34
THE VENTURE: ONE NINETY ONE PEACHTREE ASSOCIATES,
a Georgia general partnership, by its two general
partners
By: C-H Associates, Ltd., a
Georgia limited partnership,
by its two general partners
By: Hines Peachtree Associates I
Limited Partnership,
a Georgia limited partnership,
by its two general partners
By: /s/ Xxxxxx X. Xxxxx (SEAL)
---------------------------
Xxxxxx X. Xxxxx
By: Hines Atlanta Corporation,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx,
President
Attest: /s/ Xxxxx XxXxxxxx
------------------
Xxxxx XxXxxxxx,
Assistant Secretary
[CORPORATE SEAL]
By: Cousins Real Estate Corporation,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx,
Executive Vice President
35
Attest: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Xx.,
Secretary
[CORPORATE SEAL]
By: DIHC Peachtree Associates,
a Georgia general partnership, by
its two general partners
By: DIHC Peachtree, Inc., a
Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
President
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Vice President
[CORPORATE SEAL]
By: DIHC Atlanta, Inc., a
Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
President
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Vice President
[CORPORATE SEAL]
36
MANAGER: C-H MANAGEMENT ASSOCIATES, a Georgia
general partnership, by its two general partners
By: Cousins Real Estate Corporation,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx,
Executive Vice President
Attest: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx, Xx.,
Secretary
[CORPORATE SEAL]
By: /s/ Xxxxxx X. Xxxxx (SEAL)
-------------------
Xxxxxx X. Xxxxx, d/b/a
Xxxxxx X. Xxxxx Interests
