AMENDED AND RESTATED PROPERTY MANAGEMENT AGREEMENT
EXHIBIT
10.2
AMENDED AND RESTATED
PROPERTY MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED
PROPERTY MANAGEMENT
AGREEMENT (this "Agreement") is made
and entered into as of January 7, 2010, by and among REIT MANAGEMENT & RESEARCH
LLC, a Delaware limited liability company ("Managing Agent"), and
SENIOR HOUSING PROPERTIES
TRUST, a Maryland real estate investment trust (the "Company"), on behalf
of itself and those of its subsidiaries as may from time to time own properties
subject to this Agreement (each, an "Owner" and,
collectively, "Owners").
W I T N E S S E T
H:
WHEREAS, Owners and Managing
Agent are parties to a Master Management Agreement, dated as of June 11, 2008
(as amended, the "Original Agreement"),
pursuant to which Owners have engaged Managing Agent to manage certain of the
medical office buildings, clinics and biomedical, pharmaceutical and laboratory
properties (such types of properties, the "Properties") from
time to time subject to this Agreement (the "Managed Premises");
and
WHEREAS, Owners and Managing
Agent wish to amend and restate the Original Agreement as hereinafter
provided;
NOW, THEREFORE, in
consideration of the premises and the agreements herein contained, Owners and
Managing Agent hereby agree that the Original Agreement is hereby amended and
restated to read in its entirety as follows:
1. Engagement. Subject
to the terms and conditions hereinafter set forth, Owners hereby continue to
engage Managing Agent to provide the property management and administrative
services with respect to the Managed Premises contemplated by this
Agreement. Managing Agent hereby accepts such continued engagement as
managing agent and agrees to devote such time, attention and effort as may be
appropriate to operate and manage the Managed Premises in a diligent, orderly
and efficient manner. Managing Agent may subcontract out some or all
of its obligations hereunder to third party managers; provided, however, that, in any
such event, Managing Agent shall be and remain primarily liable to Owners for
performance hereunder.
Notwithstanding
anything to the contrary set forth in this Agreement, the services to be
provided by Managing Agent hereunder shall exclude all services (including,
without limitation, any garage management or cafeteria management services)
whose performance by a manager to
any Owner could
give rise to an Owner's receipt of "impermissible tenant service income" as
defined in §856(d)(7) of the Internal Revenue Code of 1986 (as amended or
superseded hereafter) or could in any other way jeopardize an Owner's federal or
state tax qualification as a real estate investment trust. Managing
Agent shall not perform any such service and if, in the event Managing Agent
shall inadvertently perform any such service, no compensation therefor shall be
paid or payable hereunder.
2. General
Parameters. Any or all services may be performed or goods
purchased by Managing Agent under arrangements jointly with or for other
properties owned or managed by Managing Agent and the costs shall be reasonably
apportioned. Managing Agent may employ personnel who are assigned to
work exclusively at the Managed Premises or partly at the Managed Premises and
other buildings owned and/or managed by Managing Agent. Wages,
benefits and other related costs of centralized accounting personnel and
employees employed by Managing Agent and assigned to work exclusively or partly
at the Managed Premises shall be fairly apportioned and reimbursed, pro rata, by
Owners in addition to the Fee and Construction Supervision Fee (each as defined
in Section
6).
3. Duties. Without
limitation, Managing Agent agrees to perform the following specific
duties:
(a) To
seek tenants for the Managed Premises in accordance with market rents and to
negotiate leases including renewals thereof and to lease space to tenants, at
rentals, and for periods of occupancy all on market terms. To employ
appropriate means in order that the availability of rental space is made known
to potential tenants, including, but not limited to, the employment of
brokers. The brokerage and legal expenses of negotiating such leases
and leasing such space shall be paid by the applicable Owner.
(b) To
collect all rents and other income from the Managed Premises and to give
receipts therefor, both on behalf of Owners, and deposit such funds in such
banks and such accounts as are named, from time to time, by Owners, in agency
accounts for and under the name of Owners. Managing Agent shall be
empowered to sign disbursement checks on these accounts.
(c) To
make contracts for and to supervise any repairs and/or alterations to the
Managed Premises, including tenant improvements and decoration of rental space
on reasonable commercial terms.
(d) For
Owners' account and at its expense, to hire, supervise and discharge employees
as required for the efficient operation and maintenance of the Managed
Premises.
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(e) To
obtain, at Owners' expense, appropriate insurance for the Managed Premises
protecting Owners and Managing Agent while acting on behalf of Owners against
all normally insurable risks relating to the Managed Premises and complying with
the requirements of Owners' mortgagee, if any, and to cause the same to be
provided and maintained by all tenants with respect to the Managed Premises to
the extent required by the terms of such tenants'
leases. Notwithstanding the foregoing, Owners may determine to
purchase insurance directly for their own account.
(f) To
promptly notify the applicable Owner's insurance carriers, as required by the
applicable policies, of any casualty or injury to person or property at the
Managed Premises, and complete customary reports in connection
therewith.
(g) To
procure seasonably all supplies and other materials necessary for the proper
operation of the Managed Premises, at Owners' expense.
(h) To
pay promptly from rental receipts, other income derived from the Managed
Premises, or other monies made available by Owners for such purpose, all costs
incurred in the operation of the Managed Premises which are expenses of Owners
hereunder, including wages or other payments for services rendered, invoices for
supplies or other items furnished in relation to the Managed Premises, and pay
over forthwith the balance of such rental receipts, income and monies to Owners
or as Owners shall from time to time direct. (In the event that the
sum of the expenses to operate and the compensation due Managing Agent exceed
gross receipts in any month and no excess funds from prior months are available
for payment of such excess, Owners shall pay promptly the amount of the
deficiency thereof to Managing Agent upon receipt of statements
therefor.)
(i) To
keep Owners apprised of any material developments in the operation of the
Managed Premises.
(j) To
establish reasonable rules and regulations for tenants of the Managed
Premises.
(k) On
behalf of and in the name of Owner, to institute or defend, as the case may be,
any and all legal actions or proceedings relating to operation of the Managed
Premises.
(l) To
maintain the books and records of Owners reflecting the management and operation
of the Managed Premises, making available for reasonable inspection and
examination by Owners or its representatives, all books, records and other
financial data relating to the Managed Premises.
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(m) To
prepare and deliver seasonably to tenants of the Managed Premises such
statements of expenses or other information as shall be required on the
landlord's part to be delivered to such tenants for computation of rent,
additional rent, or any other reason.
(n) To
aid, assist and cooperate with Owners in matters relating to taxes and
assessments and insurance loss adjustments, notify Owners of any tax increase or
special assessments relating to the Managed Premises and to enter into contracts
for tax abatements services.
(o) To
provide such emergency services as may be required for the efficient management
and operation of the Managed Premises on a 24-hour basis.
(p) To
enter into contracts on commercially reasonable terms for utilities (including,
without limitation, water, fuel, electricity and telephone) and for building
services (including, without limitation, cleaning of windows, common areas and
tenant space, ash, rubbish and garbage hauling, snow plowing, landscaping,
carpet cleaning and vermin extermination), and for other services as are
appropriate to first class office space.
(q) To
seek market terms for all items purchased or services contracted by it under
this Agreement.
(r) To
take such action generally consistent with the provisions of this Agreement as
Owners might with respect to the Managed Premises if personally
present.
(s) To,
from time to time, or at any time requested by the Board of Trustees of the
Company (the "Trustees"), make
reports of its performance of the foregoing services to the
Company.
4. Authority. Owners
give to Managing Agent the authority and powers to perform the foregoing duties
on behalf of Owners and authorize Managing Agent to incur such reasonable
expenses, specifically contemplated in Section 2, on behalf
of Owners as are necessary in the performance of those duties.
5. Special
Authority of Managing Agent. In addition to, and not in
limitation of, the duties and authority of Managing Agent contained herein,
Managing Agent shall perform the following duties:
(a) Terminate
tenancies and sign and serve in the name of Owners such notices therefor as may
be required for the proper management of the Managed Premises.
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(b) At
Owners' expense, institute and prosecute actions to evict tenants and recover
possession of rental space, and recover rents and other sums due; and when
expedient, settle, compromise and release such actions or suits or reinstate
such tenancies.
6. Compensation.
(a) In
consideration of the services to be rendered by Managing Agent hereunder, Owners
agree to pay and Managing Agent agrees to accept as its sole compensation (i) a
management fee (the "Fee") equal to three
percent (3%) of the gross collected rents actually received by Owners from the
Managed Premises, such gross rents to include all fixed rents, percentage rents,
additional rents, operating expense and tax escalations, and any other charges
paid to Owners in connection with occupancy of the Managed Premises, but
excluding any amounts collected from tenants to reimburse Owners for the cost of
capital improvements or for expenses incurred in curing any tenant default or in
enforcing any remedy against any tenant; and (ii) a construction supervision fee
(the "Construction
Supervision Fee") in connection with all interior and exterior
construction renovation or repair activities at the Managed Premises, including,
without limitation, all tenant and capital improvements in, on or about the
Managed Premises, undertaken during the term of this Agreement, other than
ordinary maintenance and repair, equal to five percent (5%) of the cost of such
construction which shall include the costs of all related professional services
and the cost of general conditions.
(b) Unless
otherwise agreed, the Fee shall be due and payable monthly, in arrears based on
a reasonable annual estimate or budget with an annual reconciliation within
thirty (30) days after the end of each calendar year. The
Construction Supervision Fee shall be due and payable periodically, as agreed by
Managing Agent and Owners, based on actual costs incurred to date.
(c) Notwithstanding
anything herein to the contrary, Owners shall reimburse Managing Agent for
reasonable travel expenses incurred when traveling to and from the Managed
Premises while performing its duties in accordance with this Agreement; provided, however, that,
reasonable travel expenses shall not include expenses incurred for travel to and
from the Managed Premises by personnel assigned to work exclusively at the
Managed Premises.
(d) Managing
Agent shall be entitled to no other additional compensation, whether in the form
of commission, bonus or the like for its services under this
Agreement. Except as otherwise specifically provided herein with
respect to payment by Owners of legal fees, accounting fees, salaries, wages,
fees and charges of parties hired by Managing Agent on behalf of Owners to
perform operating and maintenance functions in the Managed Premises, and the
like, if Managing Agent hires third parties to perform services required to be
performed hereunder by Managing Agent without additional charge to Owners,
Managing Agent shall (except to the extent the same are reasonably
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attributable to
an emergency at the Managed Premises) be responsible for the charges of such
third parties.
7. Term of
Agreement. This Agreement shall continue in force and effect
until December 31, 2010, and shall be automatically renewed for successive one
year terms annually thereafter unless notice of non-renewal is given by the
Company, on behalf of itself and Owners, or Managing Agent before the
end of the term. It is expected that the terms and conditions may be
reviewed by the Independent Trustees as defined in the Company's Bylaws, as
amended as of the date hereof (the "Independent
Trustees"), of the Compensation Committee of the Board of Trustees of the
Company at least annually.
Notwithstanding any other provision of this
Agreement to the contrary, this Agreement, or any extension thereof, may be
terminated (a) by either the Company, on behalf of itself and the Owners, or
Managing Agent upon sixty (60) days' written notice to the other party, which
termination, if by the Company, must be approved by a majority vote of the
Independent Trustees of the Compensation Committee of the Board of Trustees of
the Company, or if by Managing Agent, must be approved by a majority vote of the
directors of Managing Agent; and (b) by Managing Agent upon five (5) business
days written notice to the Company if there is a Change of
Control. This Agreement may be terminated with respect to less than
all of the properties comprising the Managed Premises to accommodate any sale of
some properties comprising the Managed Premises with Managing Agent's
consent.
For purposes of this Agreement, a "Change of Control"
shall mean: (a) the acquisition by any person or entity, or two or
more persons or entities acting in concert, of beneficial ownership (such term,
for purposes of this Section 7, having the
meaning provided such term in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of 9.8% or more, or rights, options or warrants to acquire
9.8% or more, or any combination thereof, of the Company's outstanding common
shares of beneficial interest or other voting interests of the Company,
including voting proxies for such shares, or the power to direct the management
and policies of the Company, directly or indirectly (excluding Managing Agent
and its affiliates and persons or entities that beneficially own 9.8% or more of
the Company's outstanding common shares of beneficial interest as of immediately
prior to the execution and delivery of this Agreement by the parties hereto);
(b) the merger or consolidation of the Company with or into any other entity
(other than the merger or consolidation of any entity into the Company that does
not result in a Change in Control of the Company under clauses (a), (c), or (d)
of this definition); (c) any one or more sales or conveyances to any person or
entity of all or any material portion of the assets (including capital stock or
other equity interests) or business of the Company and its subsidiaries taken as
a whole; or (d) the cessation, for any reason, of the individuals who at the
beginning of any 36 consecutive month period constituted the Trustees (together
with any new trustees whose election by the Trustees or whose nomination for
election by the shareholders of the Company was approved by a vote of a majority
of the trustees then still in office who were either trustees at the beginning
of any such period or whose election or nomination for election was previously
so approved) to constitute a majority of the Trustees then in office; provided,
however, a Change of Control of the Company shall not include the acquisition by
any person or entity, or two or
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more persons or
entities acting in concert, of beneficial ownership of 9.8% or more of the
Company's outstanding common shares of beneficial interest or other voting
interests of the Company if such acquisition is approved by the Trustees in
accordance with the Company's organizational documents and if such acquisition
is otherwise in compliance with applicable law.
Section 8 hereof
shall govern the rights, liabilities and obligations of the parties upon
termination of this Agreement; and, except as provided in Section 8, such
termination shall be without further liability of either party to the other,
other than for breach or violation of this Agreement prior to
termination.
8. Termination
or Expiration. Upon termination or expiration of this
Agreement with respect to any of the Managed Premises for any reason whatsoever,
Managing Agent shall as soon as practicable turn over to Owners all books,
papers, funds, records, keys and other items relating to the management and
operation of such Managed Premises, including, without limitation, all leases in
the possession of Managing Agent and shall render to Owners a final accounting
with respect thereto through the date of termination. Owners shall be
obligated to pay all compensation for services rendered by Managing Agent
hereunder prior and up to the effective time of such termination, including,
without limitation, any Fees and Construction Supervision Fees, and shall pay
and reimburse to Managing Agent all expenses and costs incurred by Managing
Agent prior and up to the effective time of such termination which are otherwise
payable or reimbursable to Managing Agent pursuant to the terms of this
Agreement. The amount of such fees paid as compensation pursuant to
the foregoing sentence shall be subject to adjustment in accordance with the
annual reconciliation contemplated by Section 6(b) and
consistent with past practices in performing such reconciliation.
9. Assignment
of Rights and Obligations.
(a) Without
Owners' prior written consent, Managing Agent shall not sell, transfer, assign
or otherwise dispose of or mortgage, hypothecate or otherwise encumber or permit
or suffer any encumbrance of all or any part of its rights and obligations
hereunder, and any transfer, encumbrance or other disposition of an interest
herein made or attempted in violation of this paragraph shall be void and
ineffective, and shall not be binding upon Owners. Notwithstanding
the foregoing, Managing Agent may assign its rights and delegate its obligations
under this Agreement to any successor in interest who shall acquire
substantially all the assets of Managing Agent and substantially all of the
personnel that are utilized by Managing Agent to perform services under this
Agreement.
(b) Owners,
without Managing Agent's consent, may assign its rights and obligations
hereunder to any mortgagee with respect to, or successor Owners of, the Managed
Premises, but not otherwise.
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(c) Consistent
with the foregoing paragraphs (a) and (b), the terms "Owners" and "Managing
Agent" as used in this Agreement shall mean the original parties hereto and
their respective mortgagees, successors, assigns, heirs and legal
representatives.
10. Indemnification
and Insurance.
(a) Owners
agree to defend, indemnify and hold harmless Managing Agent from and against all
costs, claims, expenses and liabilities (including reasonable attorneys' fees)
arising out of Managing Agent's performance of its duties in accordance with
this Agreement including, without limitation, injury or damage to persons or
property occurring in, on or about the Managed Premises and violations or
alleged violations of any law, ordinance, regulation or order of any
governmental authority regarding the Managed Premises except any injury, damage
or violation resulting from Managing Agent's fraud, gross negligence or willful
misconduct in the performance of its duties hereunder.
(b) Owners
and Managing Agent shall maintain such commercially reasonable insurance as
shall from time to time be mutually agreed by Owners and Managing
Agent.
11. Notices. Any
notice, report or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person, upon confirmation of receipt when transmitted by facsimile
transmission, on the next business day if transmitted by a nationally recognized
overnight courier or on the third business day following mailing by first class
mail, postage prepaid, in each case as follows (or at such other United States
address or facsimile number for a party as shall be specified by like
notice):
If to the Company
or the Owners:
000 Xxxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: President
Facsimile
No.: (000) 000-0000
If to Managing
Agent:
Reit Management
& Research LLC
000 Xxxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: President
Facsimile
No.: (000) 000-0000
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12. Limitation
of Liability.
(a) Neither
Owners nor Managing Agent shall be personally liable hereunder, all such
liability being limited in the case of Owners to the interest of Owners in the
Managed Premises and in the case of Managing Agent, to its interest
hereunder.
(b) The
Declarations of Trust establishing certain Owners, a copy of each, together with
all amendments thereto (the "Declarations"), are
duly filed with the Department of Assessments and Taxation of the State of
Maryland, provide that the names of such Owners refers to the trustees under
such Declarations collectively as trustees, but not individually or
personally. No trustee, officer, shareholder, employee or agent of
such Owners shall be held to any personal liability, jointly or severally, for
any obligation of, or claim against, such Owners. All persons and
entities dealing with such Owners, in any way, shall look only to the respective
assets of such Owners for the payment of any sum or the performance of any
obligation of such Owners. In any event, all liability of such Owners
hereunder is limited to the interest of such Owners in the Managed Premises and,
in the case of Managing Agent, to its interest hereunder.
13. Additional
Properties. Unless Owners and Managing Agent otherwise agree
in writing, all Properties from time to time acquired by Owners or their
affiliates shall automatically become subject to this Agreement without
amendment hereof.
14. Modification
of Agreement. This Agreement may not be modified, altered or
amended in any manner except by an amendment in writing, duly executed by the
parties hereto.
15. Independent
Contractor. This Agreement is not one of general agency by
Managing Agent for Owners, but one with Managing Agent engaged as an independent
contractor. Nothing in this Agreement is intended to create a joint
venture, partnership, tenancy-in-common or other similar relationship between
Owners and Managing Agent for any purposes whatsoever, and, without limiting the
generality of the foregoing, neither the terms of this Agreement nor the fact
that Owners and Managing Agent have joint interests in any one or more
investments, ownership or other interests in any one or more entities or may
have common officers or employees or a tenancy relationship shall be construed
so as to make them such partners or joint venturers or impose any liability as
such on either of them.
16. Law
Governing. This Agreement shall be governed by and in
accordance with the laws of The Commonwealth of Massachusetts.
17. Successors
and Assigns. This Agreement shall be binding upon any
successors or permitted assigns of the parties hereto as provided
herein.
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18. No Third
Party Beneficiary. Except as
otherwise provided in Section 21(i), no
person or entity other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this
Agreement.
19. Severability. If any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired, unless the provisions held invalid, illegal or unenforceable shall
substantially impair the benefits of the remaining provisions
hereof.
20. Survival. The provisions of
Sections 6, 8, 10, 11, 12, 16, 18, 19, 20, 21 and 22 of this Agreement
shall survive the termination hereof.
21. Arbitration.
(a) Any
disputes, claims or controversies between the parties (i) arising out of or
relating to this Agreement or the provision of services by Managing Agent
pursuant to this Agreement, or (ii) brought by or on behalf of any shareholder
of the Owners (which, for purposes of this Section 21, shall
mean any shareholder of record or any beneficial owner of shares of the Owners,
or any former shareholder of record or beneficial owner of shares of the
Owners), either on his, her or its own behalf, on behalf of the Owners or on
behalf of any series or class of shares of the Owners or shareholders of the
Owners against the Owners or any trustee, officer, manager (including Reit
Management & Research LLC or its successor), agent or employee of the
Owners, including disputes, claims or controversies relating to the meaning,
interpretation, effect, validity, performance or enforcement of this Agreement
or the Declarations of Trust or the Bylaws of the Owners (all of which are
referred to as "Disputes"), or
relating in any way to such a Dispute or Disputes shall, on the demand of any
party to such Dispute be resolved through binding and final arbitration in
accordance with the Commercial Arbitration Rules (the "Rules") of the
American Arbitration Association ("AAA") then in effect,
except as those Rules may be modified in this Section
21. For the avoidance of doubt, and not as a limitation,
Disputes are intended to include derivative actions against trustees, officers
or managers of the Owners and class actions by a shareholder against those
individuals or entities and the Owners. For the avoidance of doubt, a
Dispute shall include a Dispute made derivatively on behalf of one party against
another party.
(b) There
shall be three arbitrators. If there are only two parties to the
Dispute (with, for purposes of this Section 21, any and
all Owners involved in the Dispute treated as one party), each party shall
select one arbitrator within 15 days after receipt by respondent of a copy of
the demand for arbitration. Such arbitrators may be affiliated or
interested persons of such parties. If either party fails to timely
select an arbitrator, the other party to the Dispute shall select the second
arbitrator who shall be neutral and
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impartial and
shall not be affiliated with or an interested person of either
party. If there are more than two parties to the Dispute, all
claimants, on the one hand, and all respondents, on the other hand, shall each
select, by the vote of a majority of the claimants or the respondents, as the
case may be, one arbitrator. Such arbitrators may be affiliated or
interested persons of the claimants or the respondents, as the case may
be. If either all claimants or all respondents fail to timely select
an arbitrator then such arbitrator (who shall be neutral, impartial and
unaffiliated with any party) shall be appointed by the parties who have
appointed the first arbitrator. The two arbitrators so appointed
shall jointly appoint the third and presiding arbitrator (who shall be neutral,
impartial and unaffiliated with any party) within 15 days of the appointment of
the second arbitrator. If the third arbitrator has not been appointed
within the time limit specified herein, then the AAA shall provide a list of
proposed arbitrators in accordance with the Rules, and the arbitrator shall be
appointed by the AAA in accordance with a listing, striking and ranking
procedure, with each party having a limited number of strikes, excluding strikes
for cause.
(c) The
place of arbitration shall be Boston, Massachusetts unless otherwise agreed by
the parties.
(d) There
shall be only limited documentary discovery of documents directly related to the
issues in dispute, as may be ordered by the arbitrators.
(e) In
rendering an award or decision (the "Award"), the
arbitrators shall be required to follow the laws of The Commonwealth of
Massachusetts. Any arbitration proceedings or Award rendered
hereunder and the validity, effect and interpretation of this arbitration
agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et
seq. The Award shall be in writing and may, but shall not be required
to, briefly state the findings of fact and conclusions of law on which it is
based.
(f) Except
to the extent expressly provided by this Agreement or as otherwise agreed by the
parties, each party involved in a Dispute shall bear its own costs and expenses
(including attorneys' fees), and the arbitrators shall not render an award that
would include shifting of any such costs or expenses (including attorneys' fees)
or, in a derivative case or class action, award any portion of the Owners' award
to the claimant or the claimant's attorneys. Each party (or, if there
are more than two parties to the Dispute, all claimants, on the one hand, and
all respondents, on the other hand, respectively) shall bear the costs and
expenses of its (or their) selected arbitrator and the parties (or, if there are
more than two parties to the Dispute, all claimants, on the one hand, and all
respondents, on the other hand) shall equally bear the costs and expenses of the
third appointed arbitrator.
(g) An
Award shall be final and binding upon the parties thereto and shall be the sole
and exclusive remedy between such parties relating to the Dispute, including
any
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claims,
counterclaims, issues or accounting presented to the
arbitrators. Judgment upon the Award may be entered in any court
having jurisdiction. To the fullest extent permitted by law, no
application or appeal to any court of competent jurisdiction may be made in
connection with any question of law arising in the course of arbitration or with
respect to any award made except for actions relating to enforcement of this
agreement to arbitrate or any arbitral award issued hereunder and except for
actions seeking interim or other provisional relief in aid of arbitration
proceedings in any court of competent jurisdiction.
(h) Any
monetary award shall be made and payable in U.S. dollars free of any tax,
deduction or offset. Each party against which the Award assesses a
monetary obligation shall pay that obligation on or before the 30th day
following the date of the Award or such other date as the Award may
provide.
(i) This
Section 21 is
intended to benefit and be enforceable by the shareholders, directors, officers,
managers (including Managing Agent or its successor), agents or employees of the
Owners and the Owners and shall be binding on the shareholders of the Owners and
the Owners, as applicable, and shall be in addition to, and not in substitution
for, any other rights to indemnification or contribution that such individuals
or entities may have by contract or otherwise.
22. Consent
to Jurisdiction and Forum. This Section 22 is subject
to, and shall not in any way limit the application of, Section 21; in case
of any conflict between this Section 22 and Section 21, Section 21 shall
govern. The exclusive jurisdiction and venue in any action brought by
any party hereto pursuant to this Agreement shall lie in any federal or state
court located in Boston, Massachusetts. By execution and delivery of
this Agreement, each party hereto irrevocably submits to the jurisdiction of
such courts for itself and in respect of its property with respect to such
action. The parties irrevocably agree that venue would be proper in such court,
and hereby waive any objection that such court is an improper or inconvenient
forum for the resolution of such action. The parties further agree
and consent to the service of any process required by any such court by delivery
of a copy thereof in accordance with Section 11 and that
any such delivery shall constitute valid and lawful service of process against
it, without necessity for service by any other means provided by statute or rule
of court.
23. Entire
Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes and
cancels any pre-existing agreements with respect to such subject
matter.
24. Other
Agreements. The Company and Managing Agent are also parties to
a Business Management Agreement, dated as of the date hereof, as in effect from
time to time (the "Business Management
Agreement"). The parties agree that this Agreement does not
include or otherwise address the rights and obligations of the parties under the
Business Management Agreement and that the Business Management Agreement
provides for its own separate rights
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and obligations
of the parties thereto, including without limitation separate compensation
payable by the Company to Managing Agent thereunder for services to be provided
by the Managing Agent pursuant to the Business Management
Agreement.
[Signature Page
To Follow.]
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IN WITNESS WHEREOF, the
parties hereto have executed this Amended and Restated Property Management
Agreement as a sealed instrument as of the date above first
written.
MANAGING
AGENT:
REIT
MANAGEMENT & RESEARCH LLC
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By: /s/ Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Senior
Vice President
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OWNERS:
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SENIOR HOUSING PROPERTIES
TRUST, on its own behalf and on behalf of its
subsidiaries
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By: /s/ Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: President
and Chief Operating Officer
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