Exhibit 10.28
OPERATIONS AGREEMENT
This Operations Agreement ("Agreement") dated as of this 7th day of
December, 2001, is by and among RREEF AMERICA L.L.C., a Delaware limited
liability company ("RREEF"), RREEF MANAGEMENT COMPANY, a Delaware corporation
("RREEF Management"), CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware Limited
Partnership (the "OP") and CABOT INDUSTRIAL TRUST, a Maryland real estate
investment trust (the "Trust") (collectively, the OP and the Trust shall be
referred to herein as "CABOT").
RECITALS:
A. On the date hereof, CALWEST INDUSTRIAL PROPERTIES, LLC, a
California limited liability company, acquired the Trust (which a owns
substantially all of the ownership interests in the OP) (the "Acquisition");
X. XXXXX and RREEF Management are concurrently entering into a
management agreement dated as of the date hereof (the "Management Agreement")
pursuant to which RREEF Management will agree to provide certain management
services in connection with certain properties owned by CABOT;
C. The OP is the tenant under those certain leases which the
parties hereto have together, previously confirmed (the "Leases") for premises
(the "Premises") used in connection with the management of such properties;
D. In connection with the Acquisition, all of the employees of
CABOT are being terminated, and certain former employees of CABOT became
entitled to certain severance payments;
E. In addition, pursuant to an agreement between CABOT and RREEF,
RREEF offered employment to certain individuals previously employed by CABOT on
terms requiring RREEF to make certain severance payments to such individuals in
the event of their termination in certain circumstances that parallel payments
that would have been required of CABOT, and those certain individuals which the
parties hereto together, have previously confirmed (the "Employees") have
accepted such employment;
X. XXXXX has agreed to reimburse RREEF for any severance payments
required to be made to such employees, which payments would be obligations of
CABOT if the Employees did not accept employment with RREEF;
G. Xxxx XxXxxx was a party to a separate employment agreement and
not included in the general severance plan. In order to induce Xx. XxXxxx to
accept employment with RREEF, RREEF agreed to pay him a signing bonus (the
"McGill Bonus") equal to the amount he would have been paid under his separate
agreement. Xx. XxXxxx'x other rights to compensation under the separate
agreement were not triggered and he was not paid any cash under that agreement.
CABOT and RREEF have agreed that the amount paid to Xx. XxXxxx was in lieu of
severance and is reimbursable by CABOT to RREEF in the same manner as payments
under severance agreements;
X. XXXXX will no longer require the Premises for its property
management personnel, RREEF Management would like to use the Premises to provide
space for its property management personnel, and RREEF Management has agreed to
reimburse CABOT for its rental costs in connection with the Leases;
X. XXXXX no longer requires the furniture, fixtures and equipment
("FFE") located at the Premises and has agreed to convey such FFE to RREEF
Management as inducement to entering into this Agreement and taking over
occupancy of the Premises on the terms set forth herein;
X. XXXXX has agreed that in the event that in connection with
Section 9.1(1) of that certain Development Agreement between RREEF and Cabot
Properties, Inc., a Massachusetts corporation, dated as of December 19, 2001
(the "Development Agreement"), RREEF shall be required to make any payment,
reimbursement or other monetary contribution as it relates to cost savings (the
"RREEF Payment"), Cabot shall reimburse RREEF for the RREEF Payment;
X. XXXXX and affiliates of CABOT (the "Cabot Entities") are the
general partners or managing members of joint ventures (collectively, the "Joint
Ventures") with Chase, GE, and TIAA (the "TIAA Joint Venture"). Under the
Management Agreement, RREEF Management will perform the management services with
respect to the Joint Ventures previously performed by the Cabot Entities. CABOT
and RREEF Management have agreed that as consideration for such management
services RREEF Management will be entitled to all fees (including, without
limitation, all property management, acquisition, disposition, leasing, and
asset management fees and fees for any other service to be provided by RREEF
Management) to be paid after the date hereof by each of the Joint Ventures to
any of the Cabot Entities or any other affiliates of CABOT (the "Joint Venture
Fees"), but that CABOT shall retain any distributions in respect of its interest
in the TIAA Joint Venture (the "TIAA Promoted Interest"); and
X. XXXXX, RREEF and RREEF Management acknowledge and agree that
the terms and conditions of the Management Agreement (considered separately) and
this Agreement (considered separately) are equivalent to those that would be
negotiated by unrelated parties bargaining at arms' length.
NOW, THEREFORE, in consideration of the promises and conditions
contained herein, the Parties hereby agree as follows:
1. Reimbursement for Leases. CABOT agrees that RREEF Management
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may occupy each of the Premises, and RREEF Management agrees to reimburse CABOT
for rent and all other additional rent payable under each Lease from the date
hereof until (a) in the case of those certain Premises which the parties hereto
have, together, previously identified as Required Offices ("Required Offices"),
until the expiration date of such leases, and (b) in the case of those certain
Premises which the parties hereto have, together, previously identified as
Surplus Offices
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("Surplus Offices"), until RREEF Management personnel cease to operate in the
Premises. CABOT and RREEF Management acknowledge that such reimbursements
represent the fair market value for the use of each Premises, taking into
account the conveyance of the furniture, fixtures and equipment as described in
Paragraph 2.
2. Furniture, Fixtures and Equipment. CABOT hereby conveys to
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RREEF Management all of its right, title and interest in all furniture, fixtures
and equipment located in the Premises.
3. Costs for Closing of Surplus Offices. CABOT acknowledges that
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RREEF Management may use the Surplus Offices on a temporary basis and may
terminate its use and occupancy of the Surplus Offices at any time without any
charge other than the reimbursements required by Paragraph 1 through the date on
which RREEF Management personnel cease to operate therein. Any costs associated
with termination of a Lease with respect to a Surplus Office shall be paid by
CABOT.
4. Severance Obligations. If for any reason whatsoever, RREEF is
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required to pay severance (including cash compensation and the cost of medical
benefits) to the Employees, CABOT agrees to reimburse RREEF for the amounts of
such payments.
5. McGill Bonus. CABOT agrees to reimburse RREEF for the amount
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of the McGill Bonus.
6. The RREEF Payment. CABOT agrees that in the event that RREEF
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is required to make the RREEF Payment, Cabot shall promptly reimburse RREEF for
any and all such sums paid.
7. Joint Venture Fees. CABOT agrees that all Joint Venture Fees
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shall be paid to RREEF Management in consideration of the services provided by
RREEF Management to the Joint Ventures.
8. TIAA Promoted Interest. RREEF acknowledges that all rights
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with respect to the TIAA Promoted Interest shall be retained by CABOT.
In Witness Whereof, the parties below have executed this Agreement as
of the day and year first written above.
RREEF AMERICA L.L.C.,
a Delaware limited liability company
By:__________________________________
Name:________________________________
Title:_______________________________
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RREEF Management Company, a Delaware Corporation
By:_________________________________
Name:_______________________________
Title:______________________________
CABOT INDUSTRIAL TRUST, a Maryland real
estate investment trust
By:_________________________________
Name:_______________________________
Title:______________________________
CABOT INDUSTRIAL PROPERTIES, L.P., a
Delaware limited partnership
By: Cabot Industrial Trust,A Maryland real estate
investment trust, its General Partner.
By:_________________________________
Name:_______________________________
Title:______________________________
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