EXHIBIT 10(s)
REAL ESTATE MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 1St day of October, 0000, xxxxxxx XXXX
XXXXX XXXX, XXX, having an office at do First Union Real Estate Equity and
Mortgage Investments, 000 Xxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
("Owner"), and GENERAL GROWTH MANAGEMENT, INC., having a principal address 000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000 ("AGENT").
W I T N E S S E T H
In consideration of the Covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
APPOINTMENT AND AUTHORITY OF AGENT
1.1 Owner owns a shopping center (referred to as the `Premises"),
identified on Exhibit A attached hereto and made a part hereof: Owner hereby
appoints Agent as the sole and exclusive managing and leasing agent for the
Premises, and hereby authorizes Agent to exercise such powers with respect to
the Premises as may be necessary for the performance of Agent's obligations
under Article II, arid Agent accepts such appointment on the terms and
conditions hereinafter set forth for a term as provided in Article V and agrees
to manage, operate and maintain the Property in a faithful and diligent manner,
subject to the terms and conditions in this Agreement. Agent shall have no right
or authority, express or implied, to commit or otherwise obligate Owner in any
manner whatsoever except to the extent specifically provided herein.
ARTICLE II
AGENT'S AGREEMENT
2.1 Agent, on behalf of Owner, shall implement, or cause to be
implemented, the decisions of Owner and shall conduct the ordinary and usual
business affairs of Owner as provided in this Agreement. Agent shall at all
times use reasonable efforts to conform to the policies and programs established
by Owner and identified to Agent, and the scope of Agent's authority shall be
limited to said policies. All undertakings incurred by Agent on behalf of Owner
under this Agreement shall be at the cost and expense of Owner unless otherwise
provided for herein. Agent agrees to use its best efforts in the management and
operation of the Premises, and to comply with Owner's instructions. If Owner has
or creates a Managing Agent's Manual ("the Manual") which summarizes the
instructions, then the "Manual" furnished by Owner to Agent shall be made a part
hereof. In the event of any inconsistency or conflict between the terms and
provisions of this Agreement and the Manual or the policies and programs
established by Owner, the terms and provisions of this Agreement shall govern
and be binding. Agent shall perform the following duties in connection with the
management and operation of the Premises:
(a) Contract, for periods limited to Owner's possession
of the Premises, but not in excess of one (1) year, in the name of Owner, for
gas, electricity, water and such other services as are being currently furnished
to the Premises. Service contracts shall be written to include a thirty (30) day
notice of cancellation by Owner wherever possible. All service contracts in
effect at the date hereof in respect of the Premises, including the terms
thereof (with cancellation right, if any), the services provided
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thereunder and the charges called for thereby, should be detailed in the Annual
Budget. No such contract, other than a contract for an item specified in the
Annual Budget or for water or utilities, which involves an expenditure in excess
of the amount set forth in paragraph 3 of Exhibit A attached hereto shall
hereinafter be entered into by Agent without the prior approval of Owner.
(b) Select, employ, pay, supervise, train, direct and
discharge all employees necessary for the operation and maintenance of the
Premises, including the payment of all related expenses, compensation, salary,
bonuses, fringe and fringe-related costs in accordance with industry practices
and, where applicable, the Annual Budget, carry Worker's Compensation Insurance
(and, when required by law, compulsory Non-Occupational Disability Insurance)
covering such employees, and use reasonable care in the selection and
supervision of such employees. Owner agrees to reimburse Agent for any
reasonable relocation costs associated with the relocation of exempt level
employees to the Premises. Agent will keep bi-weekly time sheets which shall be
available for inspection by Owner. Agent shall prepare or cause to be prepared
and timely filed and paid, all necessary returns, forms and payments in
connection with unemployment insurance, medical and life insurance policies,
pensions, withholding and social security taxes and all other taxes relating to
said employees which are imposed by any federal, state or municipal authority.
Agent shall also provide usual management services in connection with labor
relations and shall prepare, maintain and file all necessary reports with
respect to the Fair Labor Standards Act and all other required statements and
reports pertaining to labor employed at the Premises. Agent shall use its best
efforts to comply with all laws and regulations and collective bargaining
agreements, if any, affecting such employment. Agent will be and will continue
throughout the term of this Agreement to be an Equal Opportunity Employer. All
persons employed in connection with the operation and maintenance of the
Premises shall be employees of Agent.
Owner warrants and represents that as of the date of this Agreement, the
employees of the current manager of the Premises that the Agent has been asked
to retain have never been employed by Owner nor participated in any retirement
plan offered by Owner, are not presently or in the past been represented by a
labor union in their employment at the Premises and that the Agent will not
incur any unfunded vested retirement plan liability arising out of these
employees' employment, by any previous manager at the Premises.
(c) Keep the Premises, or cause the Premises to be kept
in a safe, clean and sightly condition and make and contract for all repairs,
alterations, replacements, and installations, do or cause to be done all
decorating and landscaping, and purchase all supplies necessary for the proper
operation and maintenance of the Premises as a first-class regional shopping
mall and the fulfillment of Owner's obligations under any. lease, operating
agreement or other agreement or compliance with all governmental and insurance
requirements, provided that, except as provided in Section 2.4 hereof, Agent
shall not make any purchase or do any work, the cost of which shall exceed the
approved budget or the amount set forth in paragraph 3 of Exhibit A attached
hereto, without obtaining in each instance, the prior approval of Owner, except
in circumstances which Agent shall deem to constitute an emergency requiring
immediate action for the protection of the Premises or of tenants or other
persons or to avoid the suspension of necessary services or in order to cure any
violation or other condition which would subject Owner or Agent to any criminal
penalty or civil fine. Agent shall promptly notify Owner immediately of the
necessity for, the nature of, and the cost of, any such emergency repairs or any
action to cure any such violation or other condition. Agent shall arrange for
and supervise, on behalf of Owner, the performance of all alterations and other
work to prepare or alter space in the Premises for occupancy by tenants thereof.
Agent shall submit a list of contracts and subcontractors performing tenant
work, repairs, alterations or services at the Premises, under Agent's direction
for Owner's approval before such subcontractors commence any work at the
Premises.
It is understood that Agent shall not be required to undertake
the making or supervision of
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extensive reconstruction of the Premises or any part thereof except after
written agreement by the parties hereto as to any additional fee to be paid for
such services.
Owner shall receive the benefit of all discounts and rebates
obtainable by Agent in its operation of the Premises. Owner is entitled to
discounts from various contractors and suppliers under National Agreements;
Agent, if informed by Owner of such National Agreements, agrees to take
advantage of such National Agreements wherever feasible. Agent agrees to obtain
a minimum of three (3) competitive bids for the performance of any work at the
Premises exceeding $15,000.00, to furnish copies of such bids to Owner and to
accept such bid as Owner may direct.
If Agent desires to contract for repair, construction or other
service described in this paragraph (c) (other than work done at the request of
a tenant and at the tenant's sole cost and expense, hereinafter referred to as
"Tenant's Work") with a party with respect to which any partner or shareholder
of Agent holds a. beneficial interest, or with any subsidiary, affiliate or
related corporation in which Agent shall have a financial interest, such
interest shall be disclosed to, and approved by Owner in writing before such
services are procured. The cost of any such services shall likewise be at
competitive rates, notwithstanding that tenants of the Premises may be required
to pay such costs. Agent, or the general contractor working under the
supervision of Agent, is authorized to make and install Tenant Work, and Agent
may collect from such tenant or such general contractor, for its sole account,
its charge for supervisory overhead on all such Tenant Work; provided in each
instance Owner is notified, in advance, in writing of the scope of such work and
the identities of the tenant and contractors involved in such work. Agent shall
hold Owner harmless from any claims which may be advanced by any such tenant in
connection with Tenant Work performed by Agent or under Agent's supervision.
Agent, however, shall not require any tenant to use Agent, its subsidiary,
affiliate or related corporation or its general contractor to perform such
Tenant Work.
(d) Handle promptly complaints and requests from tenants
and parties to reciprocal easement agreements, notify Owner of any major
complaint made by any such tenant or party and notify owner promptly (together
with copies of supporting documentation), of: the receipt of any notice of
violation of any governmental requirements; and known orders or requirements of
insurers, insurance rating organizations, Board of Fire Underwriters or similar
bodies; any known defect in the Premises; any known fire or other damage to the
Premises, and complete customary loss reports in connection with fire or other
damage to the Premises.
(e) Notify Owner's General Liability Insurance carrier
and Owner promptly of any personal injury or property damage known to Agent
occurring to or claimed by any tenant or third party on or with respect to the
Premises and promptly forward to the carrier, with copies to the Owner, any
summons, subpoena, or other like legal document served upon Agent relating to
actual or alleged potential liability of Owner, Agent, or the Premises, with
copies to Owner of all such documents.
(f) Advise Owner of those exceptions in leases, operating
agreements and other agreements in which the tenants or parties to such
agreements do not agree to hold Owner harmless with respect to liability from
any accidents and/or to replace broken glass.
(g) Subject to Agent entering into cash management
agreements in form and content acceptable to Owner's mortgage and mezzanine
lenders, receive and collect rent and all other monies payable to Owner by all
tenants and licensees in the Premises and by all other parties including
department stores under ground leases and reciprocal easement agreements and
tenants under leases of free-standing stores. In this connection, Agent shall
calculate all amounts due to Owner from such tenants, licensees and other
parties, including annual or periodic adjustments where applicable, and shall,
when appropriate, submit statements or invoices to such tenants, licensees and
parties. Agent shall deposit
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the same promptly in the bank named on Exhibit A attached hereto (the "Bank") in
an account with a title including a distinctive portion of Agent's name and
" " or such other designation as Owner may direct (the "Bank Account"),
which account shall be used exclusively for such funds. Owner's representative
will be a signatory on all bank accounts maintained by Agent. Agent shall pay
the operating expenses of the Premises and any other payments relative to the
Premises as required by the terms of this Agreement out of the Bank Account. All
amounts received by Agent for or on behalf of Owner shall be and remain the
property of Owner. Checks may be drawn on the above-mentioned Bank Account only
for purposes authorized under this Agreement. Copies of the monthly statements
for each such Bank Account shall be sent to Owner. No funds of Agent or others
shall be commingled with funds in any such Bank Account. Owner has the right to
control the types of cash management accounts and dictate the specifics of said
accounts with respect to disbursement and management of funds.
(h) Serve notices of default upon tenants of space in the
Premises and other parties which are in default in performing obligations under
their leases, reciprocal easement agreements or other agreements, with copies
sent simultaneously to Owner, and attempt to cause such defaults to be cured.
Agent shall, subject to Owner's consent with respect to any tenant who occupies
more than 2,000 square feet, utilizing counsel theretofore approved by Owner,
institute all necessary legal action or proceedings for the collection of rent
or other income from the Premises, or the ousting or dispossessing of tenants or
other persons therefrom, and all other matters requiring legal attention. Agent
agrees to use its best efforts to collect rent and other charges from tenants in
a timely manner and to pursue Owner's legal remedies for non-payment of same.
Owner reserves the right to designate or approve counsel and to control
litigation of any character affecting or arising out of the operation of the
Premises and the settlement of such litigation.
(i) Bond Agent arid/or all of Agent's employees who may
handle or be responsible for monies or property of Owner with a "comprehensive
3-D" or "Commercial Blanket" bond, in an amount of $100,000.
(j) Notify Owner immediately of any known fire, accident
or other casualty, condemnation proceedings, rezoning or other governmental
order, lawsuit or threat thereof involving the Premises; and the receipt of any
notice of violations relative to the leasing, use, repair and maintenance of the
Premises under governmental laws, rules, regulations, ordinances or like
provisions.
(k) If Owner so directs, make timely payment of real
estate and personal property taxes and assessments levied or assessed against
the Premises or personal property used in connection therewith. Agent shall
promptly furnish Owner with copies of all assessment notices and receipted tax
bills.
(1) Cooperate with Owner's national energy conservation
policies, and submit energy consumption reports for the Premises as required in
accordance with Owner's program for property energy audits and review reports.
(m) Cooperate with Owner in attaining certain corporate
objectives, i.e., purchase and reporting of goods and services furnished or
supplied by minority groups.
(n) Promptly comply in all material respects with all
present and future laws, ordinances, orders, rules, regulations and requirements
of all Federal, state and local governments, courts, departments, commissions,
boards and offices, any national or local Board of Fire Underwriters or
Insurance Services offices having jurisdiction, or any other body exercising
functions similar to those of any of the foregoing which may be applicable to
the Premises or any part thereof or to the leasing, use, repair, operation and
management thereof, but only to the extent that such compliance is reasonably
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capable of being carried out and complied with by Agent and Agent has available
the necessary funds therefor from collections or advances by Owner. Agent shall
give prompt notice to Owner of any known violation or the receipt of notice of
alleged violation of such laws. As and when directed by Owner, Agent shall
institute in its name, or in the name of Owner, using counsel selected by Owner,
appropriate actions or proceedings to contest any such law, ordinance, rule,
regulation, order, determination or requirement.
(o) Promote the Premises and participate as Owner's
representative in any Merchant's Associations or Promotional Organizations
(collectively, the "Promotional Organizations") established to promote the
Premises, and in connection therewith, employ (via a property level
reimbursement or tenant reimbursement) and direct the activities of a marketing
director for the Premises.
(p) Consent to and approve tenant alteration work and
installations which are performed by tenants of space in the Premises and are
provided for in the leases of such tenants. Agent is authorized to approve
tenant alteration work and installations not provided for in leases if (i) such
alteration work and installations are made solely at the expense of the tenant,
and (ii) such alteration work and installations do not affect the structural
integrity of any building and (iii) such alteration work and installations are
consistent with the overall leasing plan for the Premises and do not interfere
with any other tenant's use of the Premises.
(q) Provide, upon Owner's request and in accordance with
the provisions of section 7 and section 9 of Exhibit A, general contracting and
construction management services ("Development Services") and consultation to
Owner for the Premises which shall include, without limitation, the management,
supervision and administration of, and provisions for services for the
improvement, expansion (and in the event of damage Or condemnation, the
reconstruction thereof) of the Premises, including advice, expertise and support
of Agent provided and/or retained and/or coordinated by home office and on-site
personnel including, without limitation, executive personnel, design and
engineering personnel, clerical personnel, legal and accounting personnel. Such
personnel will perform consultation and various functions involved with
Development Services including, without limitation, the following: design,
planning, architectural,. engineering, acquisition and negotiation, negotiations
with department stores for site acquisition and operation in the Premises;
permits and licenses; pre-opening advertising and publicity; market research;
site work; negotiations with public authorities, public hearings; project
management and all other activities necessary to accomplish the improvement,
expansion or reconstruction of the Premises.
(r) If Owner so directs, pay when due (i) all debt
service and other amounts due under any mortgages which encumber the Premises or
any part thereof, and give Owner notice of the making of each payment, and (ii)
all rent and other charges payable under any ground lease of land included in
the Premises under which Owner is the tenant.
(s) Cause the requirements on the part of Owner under all
such mortgages and ground leases, all leases of space in the Premises, all
ground leases and reciprocal easement agreements with department stores and all
other agreements affecting or relating to the Premises which are known or made
known to Agent, including, without limitation, the furnishing of all services
and utilities called for therein, to be carried out and complied with in all
material respects, but only to the extent that such requirements are at the time
reasonably capable of being carried out by Agent and complied with and Agent has
available the necessary funds therefor from collections or advances by Owner.
Agent shall notify Owner promptly of any default under any such mortgage, lease,
ground lease, reciprocal easement or other agreement on the part of Owner, the
tenant or other party thereto, of which Agent becomes aware.
(t) Use its reasonable efforts to require compliance with
the requirements of leases of
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space in the Premises, ground leases, reciprocal easement agreements and all
other agreements affecting or relating to the Premises which are known or made
known to Agent on the part of tenants, department stores and other parties
thereto and enforce compliance with the rules and regulations, sign criteria and
like standards for the Premises adopted by Owner from time to time.
(u) Cause Owner to be furnished with an executed copy of
each lease, lease renewal, lease amendment, service contract and other agreement
entered into on or after the date of this Agreement in connection with the
operation, management and leasing of the Premises, and use reasonable efforts to
secure from tenants and parties to reciprocal easement agreements, and furnish
to Owner, any certificates of insurance, and renewals thereof, required to be
furnished by the terms of their leases or agreements.
(v) Inspect the Premises periodically and submit reports
of findings and recommendations to Owner which shall include, without
limitation, recommendations as to required repairs, replacements or maintenance.
(w) Erect barriers or chains for the purpose of blocking
access to the common areas of and buildings included in the Premises as local
law may require, or, directed in writing by Owner, in order to avoid the
dedication of the same for public use and furnish appropriate evidence of same
to Owner. Agent shall give any advance notice of the erection of such barriers
or chains which may be required under reciprocal easement agreements or ground
leases with department stores.
(x) Use its reasonable efforts to obtain from tenants of
the Premises and department stores which are parties to reciprocal easement
agreements or ground leases waivers of their insurers' rights of subrogation in
respect to policies of fire and extended coverage and other property damage
insurance carried by them in favor of Owner, Agent and any department store or
tenant for which Owner is obligated to attempt to obtain such waivers under a
ground lease, reciprocal easement agreement or space lease.
(y) Provide and prepare standard quarterly statements and
other required reports to be submitted by Owner to its lenders.
(z) Perform its duties in the renting, management,
operation and maintenance of the Premises applying prudent and reasonable
business practices, using reasonable care and diligence in carrying out its
responsibilities under this Agreement. Agent shall maintain those portions of
the common areas of the Premises which are Owner's obligation to maintain in a
clean and attractive first-class condition, use reasonable efforts to enforce
the provisions of applicable leases, ground leases and reciprocal easement
agreements so as to cause tenants and department stores to maintain their
premises and common areas, if any, in similar condition, arrange for necessary
security for the Premises and their common areas and arrange for cleaning and
snow removal for the parking areas and roadways of the Premises. Agent shall
recommend to Owner from time to time such procedures with respect to the
Premises as Agent may deem advisable for the more efficient and economic
management and operation thereof.
Owner recognizes and understands that Environmental Services
(as hereinafter defined) are not actions or services that
Agent is required to perform under this Agreement and Owner
further recognizes and understands that Agent is not a
consultant or a contractor that performs Environmental
Services. Upon Owners request, Agent agrees to obtain and
coordinate for and on behalf of Owner, such Environmental
Services that Owner may request or require. Owner shall
reimburse Agent for its administrative costs in connection
with the coordination of such Environmental Services. In
addition, Owner shall reimburse Agent for the costs of outside
professionals retained to perform Environmental Services.
Environmental Services is defined
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to be those acts or actions involving the presence, use,
exposure, removal, restoration, or introduction of Hazardous
Materials (as hereinafter defined) and the investigation of
and compliance with any and all applicable rules, laws, or
regulations of local state or federal authorities which apply
or regulate Hazardous Materials. Hazardous Materials means
any. hazardous, radioactive or toxic substance, material or
waste listed in the United States Department of Transportation
Hazardous Materials Table; or by the Environmental Protective
Agency as hazardous substances; or such substances, material
and waste which are or become regulated under applicable
local, state or federal law including materials which are
petroleum products, asbestos, polychlorinated biphenyls, or
designated as hazardous substances under the Clean Water Act;
or defined as hazardous waste under the Resource Conservation
and Recovery Act; or defined as hazardous substances under the
Comprehensive Environmental Response, Compensation and
Liability Act.
(aa) Agent agrees that, unless specifically agreed to in writing by the
Owner, all contracts executed by 3rd party vendors, suppliers, contractors, etc.
will have a provision whereby said vendor, supplier or contractor indemnifies
Owner for the vendor's, supplier's, or contractor's negligence.
2.2 Agent agrees to render monthly, quarterly and annual reports
relating to the management and operation of the Premises for the preceding
calendar month, quarter and year, as the case may be; on or before the fifteenth
(15th) day of the month following the end of the month, quarter or year, as the
case may be, in form satisfactory to Owner in accordance with Exhibit B. At
Owner's request, Agent shall update Owner's Argus reports up to twice per year.
Agent shall have the option to provide any and all such reports electronically.
Agent agrees that Owner shall have the right to require the transfer to Owner at
any time of any funds in the Bank Account considered by Owner to be in excess of
an amount reasonably required by Agent for disbursement purposes in connection
with the Premises. Agent agrees to keep records with respect to the management
and operation of the Premises as prescribed by Owner, and to retain those
records for periods specified by Owner, but not to exceed a period of the
greater of two (2) years after the expiration or earlier termination of this
Agreement or any applicable period that is required by law for the retention of
such records. Owner shall have the right to inspect such records and audit the
reports required by this Section during business hours for the life of this
Agreement and thereafter during the period such records are to be retained
pursuant to this Section. In addition, Agent agrees that such records may be
examined from time to time during the period by said regulatory authorities
having jurisdiction over Owner.
2.3 Agent shall ensure such control over accounting and financial
transactions as is reasonably required to protect Owner's assets from loss or
diminution.
2.4 Agent shall establish and prepare, or as otherwise authorized
by Owner, operating and capital improvement budgets for the promotion,
operation, repair and maintenance of the Premises for each calendar year (Annual
Budget) with the exception of the Annual Budget for 2002 that has been delivered
to Agent and Agent shall adhere to in the performance of its duties under this
Agreement. Preliminary and final budgets will be due 120 and 75 days,
respectively, prior to commencement of the calendar year to which they relate,
except for the first year of this Agreement, when preliminary budgets will be
delivered to Owner by November ~ and final budgets will be delivered to Owner by
December 1st. Such budgets shall be prepared on both an accrual basis and a cash
basis showing a month-by-month projection of income and expenses and capital
expenditures and contain all necessary supporting data, including bids for
capital items. Such budgets shall be subject to Owner's approval.
(a) Agent shall meet, at Agent's expense, with Owner at
the Premises or Owner's office, not less frequently than semi-annually, to
review the operations of the Premises, to review and, if appropriate, revise in
light of actual experience the operating and capital improvement budgets
theretofore
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approved by Owner as hereinafter provided and to consider other matters which
Owner may raise. One of such meetings each year (the "Budget Meeting") shall be
held before the close of the then current calendar year for the purpose of
reviewing and approving the operating and capital improvement budgets for the
ensuing calendar year.
(b) Upon approval of the operating budget by Owner, and
unless and until revoked or revised by Owner, Agent shall have the right,
without further consent or approval by Owner to incur and pay the operating
expenses set forth in the approved operating budget.
(c) At the request of Owner from time to time Agent shall
prepare and submit to Owner (i) operating projections for the Premises for the
ensuing five (5) years, such projections to be made on a year-by-year basis and
to be based on Agent's best judgment as to the future, taking into consideration
known circumstances and circumstances Agent can reasonably anticipate are likely
to occur, and (ii) a schedule in reasonable detail of capital improvements,
repairs and replacements not provided or in the current capital improvement
budget which Agent reasonably anticipates will be required or should be made in
the foreseeable future, with Agent's opinion as to the relative priority and
cost of each thereof.
2.5 Agent shall bear the full cost and expenses incurred by its
home office or regional office personnel in connection with their travel to the
Premises to the extent such travel is required by the Agent for the normal
supervision of the management and leasing of the Premises.
2.6 Agent agrees to use all reasonable efforts to have the
Premises rented to desirable tenants, satisfactory to Owner, considering the
nature of the Premises, and in connection therewith:
(a) Negotiate, as the exclusive agent of Owner, all
leases and renewals of leases at the appropriate time, it being understood that
all inquiries to Owner with respect to leasing any portion of the Premises shall
be referred to Agent. All leases, renewals and amendments for lease terms in
excess of ninety (90) days must be prepared in accordance with Exhibit C by
Agent in accordance with the Annual Budget and be submitted to Owner's
representative for execution by Owner. Agent is authorized to negotiate and
execute leases with lease terms of one (1) year or less (temporary tenant
leases). If Agent shall have or receive a prospective tenant reference from a
property other than the Premises in which Agent or any subsidiary or affiliate
thereof has a beneficial interest or which Agent or any subsidiary or affiliate
thereof manages (other than a property managed by Agent for Owner), Agent shall
promptly declare its potential conflict of interest to Owner and Owner shall
determine if negotiations with such prospective tenant shall be undertaken by
Agent, Owner or a third party approved by Owner. ~gent also is authorized to
negotiate and execute on Owner's behalf lease amendments which change a tenant's
commencement date by sixty (60) days or less. Notwithstanding the foregoing,
Owner acknowledges that the actual negotiation and drafting of lease and
lease-related documentation shall be performed by Owner's outside counsel, at
Owner's sole cost and expense.
(b) Owner acknowledges and understands that Agent manages
properties for third parties, including properties that may be owned by
affiliates of Agent or owned by persons, that also own Agent. Owner further
acknowledges and understands that Agent routinely and customarily negotiates
tenant leases for multiple locations involving two or more properties (one or
more of which may be the Premises and one or more of which may be properties
owned by others). Agent conducts such multiple location negotiations in good
faith for the benefit and interests of Owner and other property owners. Agent
shall be entitled to assume that such leasing practices are approved and
acceptable to Owner, unless and until Owner specifically disapproves the
practice and so notifies Agent.
(c) With Owner's prior approval, advertise the Premises
or portions thereof for rent, by means of periodicals, signs, plans, brochures
and other means appropriate to the Premises.
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(d) In no event shall Agent engage or utilize the
services of an outside broker in connection with any lease without Owner's prior
written consent. In any case in which Owner requests' or gives such consent,
Agent shall cause such broker to enter into a written agreement with Owner, on
terms reasonably satisfactory to Owner, with respect to such broker's commission
and Owner shall be responsible for the payment of such commission if earned
pursuant to the terms of said agreement.
2.7 Agent agrees, for itself and all persons retained or employed
by Agent in performing its services, to hold in confidence and not to use or
disclose to others any confidential or proprietary information of Owner
heretofore or hereafter disclosed to Agent and identified in writing by Owner as
confidential or proprietary, including, but not limited to, any financial data,
information plans, programs, processes, costs, operations or tenants which may
come within the knowledge of Agent in the performance of, or as a result of, its
services, except where required by judicial or administrative order, or where
Owner specifically authorizes Agent to disclose any of the foregoing to others
or such disclosure reasonably results from the performance of Agent's duties
hereunder.
2.8 If at any time there shall be insufficient funds available to
Agent from collections to pay any obligations of Owner required to be paid under
this Agreement, Agent shall promptly notify Owner and Agent shall not be
obligated to pay such obligations unless Owner furnishes Agent with funds
therefor.
2.9 General Growth Marketing Services ("GGMS"), an unincorporated
division of Agent, will direct, under Agent's supervision, the marketing and
promotional activities for the Premises, including those set forth in Section
2.1(o). Agent shall cause GGMS to continue to provide such services to the
Premises during the terms of this Agreement. Incident to such services, GGMS
recommends appropriate staffing to effectively market the Premises and manages
the development and execution of the property and marketing plan for the
Premises. Owner acknowledges that GGMS may retain, for these services,
$35,000.00 per year, payable in equal monthly installments of $2,916.67 per
month. Owner additionally acknowledges that GGMS or Center Advertising Agency,
an unincorporated division of Agent, may retain the customary trade discounts or
rebates incident to its contracting for advertising for the Promotional
Organizations, the cost of which advertising is borne by the Promotional
Organizations. Moreover, Owner agrees that Agent or GGMS shall additionally be
entitled to receive the fee set forth in Exhibit A attached hereto for its
services incident to contracting and managing revenue-producing transactions,
contracts, ancillary programs, events and activities.
2.10 Except as otherwise provided in this Agreement, Agent assumes
no responsibility under this Agreement other than to render the services called
for hereunder in good faith and in accordance with the standards required under
this Agreement.
2.11 Owner recognizes and understands that Security Services (as
hereinafter defined) Are not actions or services that Agent is required to
perform under this Agreement and Owner further recognizes and. understands that
Agent is not a consultant or a contractor that performs Security Services. Upon
Owner's request, Agent agrees to obtain and coordinate for and on behalf of
Owner, such Security Services that Owner may request or require in accordance
with the Annual Budget and Agent shall be responsible for supervision and
enforcement of any such contract. Owner shall reimburse Agent for the costs of
professionals should they be retained to perform Security Services. Security
Services is defined to be those acts or actions involving the analysis of the
existing security operations, including that of staffing levels, training,
equipment procurement and use; recommendations regarding proposed staffing
levels, training and equipment including recommendation, selection and
procurement of third party or proprietary security vendors, and coordination and
ongoing administration and monitoring of such third party or proprietary
security vendors.
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ARTICLE 111
OWNER'S AGREEMENTS
3.1. Owner, at its option, may pay directly all taxes, special
assessments, ground rents, insurance premiums and mortgage payments. If Owner
makes such election, Agent shall advise Owner of the due dates of such taxes
assessments, insurance premiums and mortgage payments. Otherwise, Agent shall
make such payments promptly so as to avoid late fees, penalties or other charges
3.2 At Owner's option, Owner shall self-insure or carry insurance
upon the Premises and shall look solely to such insurance for indemnity against
any loss or damage to the Premises, except to the extent provided in Section 3.3
of this Agreement. Owner shall obtain waivers of subrogation against the Agent
under all such policies. Owner shall provide and maintain at Owner's sole cost
and expense commercial general liability insurance, including bodily injury,
contractual liability (with respect to the indemnity set forth in Section 3.3
hereof) and broad form property damage liability, in connection with the
ownership, use and occupancy of the Premises, in the amount of not less that
$100,000,000. Agent shall be named in the commercial general liability policies
as an additional insured, with a restrictive endorsement, which means Agent is
an additional insured with respect to the locations specified in this Agreement
only.
3.3 Except as herein expressly provided, Owner agrees to indemnify
and save harmless Agent and its shareholders, directors, officers and employees
from and against all claims, losses and liabilities resulting from: (I) damage
to property or injury to, or death of, persons from any cause whatsoever when
Agent's intent is as to carrying out the provisions of this Agreement or acting
under the direction of Owner in or about the Premises (ii) claims for personal
injury, including but not limited to defamation and false arrest, when Agent IS
carrying out the provisions of this Agreement or acting under the direction of
Owner, and (iii) claims occasioned by or in connection with or arising out of
acts or omissions, other than criminal acts, of the Agent when Agent's intent is
as to carrying out the provisions of this Agreement or acting under the
direction of Owner and to defend or cause to be defended, at no expense to Agent
or such persons, any claim, action or proceeding brought against Agent or such
persons or Agent and Owner, jointly or severally, arising out of the foregoing,
and to hold Agent and such persons harmless from any judgments loss or
settlement on account thereof.
Notwithstanding the foregoing, Owner shall not be responsible
for indemnifying or defending Agent and Agent agrees to indemnify and save
harmless Owner and its shareholders, directors, officers and employees, from and
against claims, losses and liabilities resulting from (i) any acts or omissions
that constitute gross negligence, misconduct or fraud on the part of Agent, its
employees or contractors, (ii) any acts or omissions that are outside the scope
of Agent' S authority or responsibility under this Agreements and (iii) the
default by Agent under this Agreement (collectively, clauses (i), (ii) and (iii)
are hereinafter referred to as "Agent Indemfliflcati0n Events").
Notwithstanding the foregoing, Agent shall not be responsible
for indemnifying or defending Owner in respect of any matter, claim or liability
which is covered by any commercial general liability insurance policies carried
by Owner and under which Agent is named as an additional insured unless such
matter, claim or liability arises from Agent Indemnificati0n Events. In the
event of such Agent Indemnification Events, Agent shall indemnify and defend
Owner as provided above and shall look to Agent's own insurance, not Owner's
policy of insurance in which Agent is named as an additional insured, as the
primary insurance with respect to such acts of Agent without right of
contribution from Owner's insurance except to the extent Owner has been
contribut0~Y negligent. The indemnification obligations of Owner and Agent under
this Section 3.3 shall in each case be conditioned upon (a) prompt
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notice from the other party after such party learns of any claim or basis
therefor which is covered by such indemnity, (b) such party's not taking any
steps which would bar Owner or Agent, as the case may be, from obtaining
recovery under applicable insurance policies or would prejudice the defense of
the claim in question, and (c) such party's taking of all necessary steps which
if not taken would result in Owner or Agent, as the case may be, being barred
from obtaining recovery under applicable insurance policies or would prejudice
the defense of the claim in question. The provisions of this Section 3.3 shall
survive the expiration or termination of this Agreement. Owner's liability under
this Section 3.3 shall in no event exceed the amount of insurance available to
Owner with respect to such liability.
3.4 Owner shall provide such office space on the Premises as may
be necessary for Agent to properly perform its functions under this Agreement.
Agent shall not be required to pay for utilities, telephone service or rent for
the office area on the Premises occupied by Agent. Agent shall have the right to
use the fixtures, furniture, furnishings and equipment, if any, which are the
property of Owner in said office space. Owner shall also provide space' on the
Premises for use as community rooms and information and service centers where
the use of such space is determined by Owner to be in the best interest of the
Premises- All income derived from the utilization and/or operation of such
community rooms and/or information or service centers shall belong to the Owner
and all expenses relating thereto shall be borne by Owner.
3.5 Owner agrees, at its own cost and expense, to provide Agent
with the information in its possession regarding the rent rolls, and lease
profiles of all tenants of the Property, including outparcel tenants and
department store tenants. Such profile will include, but not be limited to
information regarding rent, charges, key business terms such as termination
rights, exclusives, abatements, relocation rights, kiosk restrictions, options
to extend, rights of first refusal, recapture rights, cotenancy and operating
covenants. Upon receipt of the information, Agent will verify the accuracy of
the billing and lease profiles often non-anchor tenants selected by Owner. If
such verification results in a finding that such information is incorrect in any
material matter, Owner will engage a third party to review and report on the
billing of all existing tenants. If such information is not provided to Agent
within 30 days of the effective date of this Agreement, Agent may, at its
option: (i) without any liability to Agent, rely on the billing methodology used
by the Owner and/or previous Agent for Owner; or (ii) retain, at Owner's cost,
outside personnel and/or firms to provide said information to Agent, and Agent
may rely upon said information as if it were provided by Owner.
3.6 Except as otherwise provided in this Agreement, everything
done by Agent in the performance of its obligations under this Agreement and all
expenses incurred pursuant hereto shall be for and on behalf of Owner and for
its account. Except as otherwise provided herein, all debts and liabilities
incurred to third parties in the ordinary course of business of managing the
Premises are and shall be obligations of Owner, and Agent shall not be liable
for any such obligations by reason of its management, supervision or operation
of the Premises for Owner.
ARTICLE IV
COMPENSATION
4.1 In addition to any other compensation provided to be paid to
Agent under this Agreement, Owner agrees to pay to Agent as compensation for its
management services hereunder, a fee at the rate specified in paragraph 5 of
Exhibit A attached hereto. Said fee shall be payable monthly in arrears, on the
10th day of each calendar month, and shall be based on receipts from the
preceding calendar month. Agent shall-withdraw said fee from the Bank Account
and shall account for same as provided for in Section 2.2 hereof. It is
understood that there shall be excluded there from (i) fire loss proceeds, (ii)
capital improvements, remodeling and tenant change costs (including any overhead
factor payable by Tenants), (iii) amortization for tenant work, (iv) security
deposits, and (v) all utility and service charges
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and payments not included in the basic rent, received from tenants.
4.2 In recognition that Agent, through its Purchasing Services
division acquires furniture and other personal property for the benefit of Owner
on attractive terms and/or pricing, Owner agrees to pay Manager a fee equal to
the lesser of one-half of the savings achieved and five percent (5%) of the
costs of such furniture and personal property (excluding supplies and equipment
used primarily in the common areas of the Premises) acquired for the Owner,
excluding taxes, licenses, shipping and parking charges.
4.3 For leases secured pursuant to Section' 2.6, Agent shall be
entitled to fees and commissions provided in Exhibit A, section 6.
4.4 Agent will utilize electronic data processing as it determines
appropriate or necessary in preparing or issuing reports required by this
Agreement. Nothing contained in this Agreement shall be construed as obligating
Owner without its express consent to reimburse Agent for the cost of electronic
data processing reports or services (i) if such reports or services are required
by Agent to fulfill any of its obligations under this Agreement or to furnish to
Owner in a timely fashion any reports provided for herein, or (ii) if Agent
utilizes data processing facilities or services in performing its obligations
under this Agreement.
Notwithstanding the foregoing, Owner acknowledges that Agent currently uses MRI
DOS for its accounting needs and will be `migrating to XX Xxxxxxx Suite of
Accounting Products. Any unique software required by Owner to be used at Agent's
home office shall be reimbursed by Owner to Agent. In addition, Owner agrees to
reimburse Agent for the cost of any computer equipment and software residing at
the Premises which is necessary to administer, maintain and communicate data
which is required by Owner and Manager. At the termination of this Agreement,
such equipment and software will remain the property of Owner.
The following expenses or costs incurred by or on behalf of Agent in
connection with the management and leasing of the Premises shall be the sole
cost and expense of Agent and shall not be reimbursable by Owner:
(a) cost of gross salary and wages, payroll taxes,
insurance, worker's compensation, pension benefits and any other fringe benefits
and fringe benefits-related costs of Agent's personnel except such cost
pertaining to personnel employed by Agent in accordance with Paragraph 2.1(b)
hereof;
(b) general accounting and reporting services, as such
services are considered to be within the reasonable scope of Agent's
responsibility to Owner;
(c) costs of forms, stationery, ledgers and other
supplies and equipment used in Agent's home office or regional home office;
(d) cost or pro rata cost of Agent's standard electronic
data processing equipment located at Agent's home or regional offices;
(e) cost or prorata cost of electronic data processing,
for data processing provided by computer service companies when provided in lieu
of item (d) above;
(f) cost of all related expenses, compensation, salary,
bonuses, fringe and fringe-related costs by Agent to Agent's employees, except
such costs pertaining to employees employed by. Agent in accordance with
Paragraph 2.1(b) hereof;
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(g) cost attributable to losses arising from criminal
acts or from gross negligence or fraud on the part of Agent's associates or
employees;
(h) cost for meals, travel and hotel accommodations for
Agent's home office or regional office personnel who travel to and from the
Premises or Owner's office, except as provided in Section 2.5;
(I) cost of automobile purchase and/or rental, except if
furnished or approved by Owner;
(j) except as otherwise provided in Exhibit A attached
hereto, expenses incurred in connection with the leasing of the Premises, it is
being understood and agreed, however, that Agent shall be reimbursed for
advertising expenses incurred in connection with the leasing of the Premises up
to the amount approved in the Annual Budget; and
(k) fees and expenses of consultants and counsel retained
without Owner's prior approval.
ARTICLE V
DURATION, TERMINATION, DEFAULT
5.1 This agreement shall become effective on the date hereof,
subject to receipt of approval by Owner's lender.
5.2 Subject to earlier termination-as hereinafter provided, this
Agreement shall terminate on the first anniversary of the date hereof (the
"Initial Term"). At the conclusion of the Initial Term, this Agreement shall be
automatically renewed on a year-to-year basis (subject to the termination rights
provided in this Agreement) unless either party gives notice to the other of its
election not to renew the term of this Agreement for the next and succeeding
annual periods. Such notice of termination must be given to the other party at
least sixty (60) days (in the case of a termination by Owner) or one hundred
eighty (180) days (in the case of a termination by Agent) prior to the
expiration of the then-current term of this Agreement. In addition, Owner may
terminate this Agreement at any time upon sixty (60) days prior written notice
and the Agent may terminate this. Agreement at any time upon ninety (90) days
prior written notice.
5.3 AGENT DEFAULT; OWNER TERMINATION: It shall be an Event of
Default under this Agreement on the part of Agent if Agent shall default in any
material respect in performing any of its obligations under this Agreement and
such default shall not be cured within 30 days after written notice thereof is
given by Owner to Agent (or, if the default in question is curable but is of
such nature that it cannot reasonably be completely cured within such 30-day
period, if Agent does not promptly after receiving such notice commence to cure
such default and thereafter proceed with reasonable diligence to complete the
curing thereof). If an Event of Default by Agent shall occur, Owner shall have
the right to terminate this Agreement by written notice given to Agent, and upon
the giving of such notice this Agreement and the term hereof shall terminate
without any obligation on the part of Owner to make any payments to Agent
hereunder except as hereinafter provided.
5.3 (a) If at any time during the term of this Agreement any
involuntary petition in bankruptcy or similar proceeding shall be filed against
Agent seeking its reorganization, liquidation or appointment of a receiver,
trustee or liquidator for it or for all or substantially all of its assets, and
such petition shall not be dismissed within 90 days after the filing thereof, or
if Agent shall:
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(i) apply for or consent in writing to the
appointment of a receiver, trustee or liquidator of all or substantially all of
its assets;
(ii) file a voluntary petition in bankruptcy or
admit in writing its inability to pay its debts as they become due;
(iii) make a general assignment for the benefit of
creditors;
(iv) file a petition or an answer seeking
reorganization or an arrangement with creditors or take advantage of any
insolvency law; or
(v) file an answer admitting the material
allegations of a petition filed against it in any bankruptcy, reorganization or
insolvency proceedings;
(vi) itself or one of its agents or employees
shall engage in any fraud, gross negligence or willful misconduct in the
performance of the Agent's duties under this Agreement,
then upon the occurrence of any of the above described events, Owner, at its
option, may terminate this Agreement by written notice given to Agent, and upon
the giving of such notice this Agreement and the term hereof shall terminate
without any obligation on the part of Owner to make any payments to Agent
hereunder except as hereinafter provided.
5.3 (b) Owner shall have the additional right to terminate this
Agreement on at least 10 days' written notice to Agent if (a) except as
otherwise provided in Article VI Agent, without Owner's prior written consent,
shall assign or attempt to assign its rights or obligations under this Agreement
or subcontract (except for normal service agreements or as otherwise specified
in this Agreement) any of the services to be performed by Agent' hereunder or
(b) the premises shall be damaged or destroyed to the extent of 25% or more by
fire or other casualty and Owner elects not to restore or repair the premises,
or (c) there shall be a condemnation or deed in lieu thereof of 10% or more of
the premises.
5.3 (c) This Agreement shall terminate at the election of the
Owner upon thirty (30) days written notice to the Agent if the Premises are sold
by the Owner to a non-affiliated third party purchaser or automatically if the
Premises were acquired by the Owner on foreclosure of a mortgage and are
subsequently redeemed. In the event the Premises are sold by the Owner to a
non-affiliated third party purchaser and this agreement is `not thereby
terminated by the Owner, the Agent shall have the right to terminate this
Agreement upon sixty (60) days prior written notice which notice must be given
within (90) days after the date such sale is consummated. If the Premises are
sold, Agent will not be entitled to any sales commission unless the Agent has
been retained by the Owner pursuant to a separate commission arrangement.
5.4 OWNER DEFAULT; AGENT TERMINATION: It shall be an Event of
Default under this Agreement on the part of Owner if Owner shall default in any
material respect in performing any of its obligations under this Agreement and
such default shall not be cured within 30 days after written notice thereof is
given by Agent to Owner (or, if the default in question is curable but is of
such nature that it cannot reasonably be completely cured within such 30-day
period, if Owner does not promptly after receiving such notice commence to cure
such default and thereafter proceed with reasonable diligence to complete the
curing thereof). If an Event of Default by Owner shall occur, Agent shall have
the right to terminate this Agreement by written notice given to Owner, and upon
the giving of such notice this Agreement and the term hereof shall terminate and
Owner shall remain obligated to make the payments to Agent hereunder as provided
in. Section 5.9 hereof.
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5.4 (a) If at any time during the term of this Agreement any
involuntary petition in bankruptcy or similar proceeding shall be filed against
Owner seeking its reorganization, liquidation or appointment of a receiver,
trustee or liquidator for it or for all or substantially all of its assets, and
such petition shall not be dismissed within 90 days after the filing thereof, or
if Owner shall:
(i) apply for or consent in writing to the appointment of
a receiver, trustee or liquidator of all or substantially all of its assets; *
(ii) file a voluntary petition in bankruptcy or admit in
writing its inability to pay its debts as they become due;
(iii) make a general assignment for the benefit of
creditors;
(iv) file a petition or an answer seeking reorganization
or an arrangement with creditors or take advantage of any insolvency law; or
(v) file an answer admitting the material allegations of
a petition filed against it in any bankruptcy, reorganization or insolvency
proceedings; then, upon the occurrence of any such event Agent, at its option,
may terminate this Agreement by written notice given to Owner, and upon the
giving of such notice this Agreement and the term hereof shall terminate and
Owner shall remain obligated to make any accrued payments to Agent hereunder as
well as those provided in Section 5.5.
5.4 (b) Agent shall have the additional right to terminate this
Agreement on at least sixty (60) days written notice to Owner if at any time
Owner assigns this Agreement and its rights and obligations hereunder.
5.5 Upon any termination of this Agreement pursuant to the
provisions of this Article V, Owner shall remain obligated to pay to Agent fees
and other amounts due to Agent hereunder which accrued prior to the effective
date of such termination, as well as the severance costs paid by Agent to all
employees of Agent employed on a full time basis at the Premises who are not
offered a position of comparable salary and comparable duties by the successor
agent of the Premises; such severance costs in accordance with Agent's customary
severance policy, but in no event to exceed one week per year of service.
Without limiting the foregoing, Agent shall be entitled to leasing commissions
in accordance with the terms of this Agreement on all transactions originated
during the Term (or any extension or renewal thereof) on documents signed by any
tenant and delivered to Owner within four (4) months after the effective date of
expiration or earlier termination of the Term, and then subsequently signed by
Owner. As evidence of transactions originating during the Term, Agent shall
submit to Owner, within twenty (20) days after the effective date or earlier
termination of the Term, a list containing names of only those specific
prospective tenants from whom Agent has, prior to the effective date of
expiration or earlier termination of the Term, received written evidence of
interest for space, or whom Agent has shown space at the Premises. Nothing
contained in this Section 5.5 shall be deemed to waive, affect or impair (a)
Owner's rights to seek recourse against Agent for damages or other relief in the
event of the termination of this Agreement by Owner pursuant to Section 5.3
hereof, and (b) Agent's right to seek recourse against Owner for damages or
other relief in the event of the termination of this Agreement by Agent pursuant
to Section 5.4 hereof.
5.6 Upon the expiration or earlier termination of this Agreement,
Agent shall forthwith surrender and deliver to Owner any space in the Premises
occupied by Agent and shall make delivery to Owner or to Owner's designee or
agent, at Agent's home or regional offices or at its offices at the Premises, of
the following:
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(a) a final accounting, reflecting the balance of income
from and expenses of the Premises as at the date of expiration or termination of
this Agreement;
(b) any funds of Owner or tenant security or advance rent
deposits, or both, held by Agent with respect to the Premises; and
(c) all records, contracts, leases, ground leases,
reciprocal easement agreements, receipts for deposits, unpaid bills, lease
summaries, canceled checks, bank statements, paid bills and all other records,
papers and documents and any microfilm and/or computer disk of any of the'
foregoing which relate to the Premises and the operation, maintenance,
management and leasing thereof (but specifically excluding any proprietary
software of Agent); all such data, information and documents being at all `times
the property of the Owner.
In addition, Agent shall furnish all such information and take
all such action as Owner shall reasonably require to effectuate an orderly and
systematic termination of Agent's duties and activities under this Agreement.
5.7 The provisions of this Article V shall survive the expiration
or termination of this Agreement.
ARTICLE VI
ASSIGNMENT
6.1 Except for a transfer to a "Permissible Transferee", Agent
shall not assign its rights or obligations under this Agreement, either directly
or by a transfer of stock or voting control either voluntarily or by operation
of law. Any assignment or transfer other than to a "Permissible Transferee"
shall constitute a breach of this Agreement by Agent and Owner may terminate
this Agreement in accordance with Section 5.5. A "Permissible Transferee" shall
mean any corporation, partnership, limited liability company, trust or other
entity, more than 50% of the outstanding stock of which, or more than 50%
interest in which, is owned or controlled by GGPLP L.L.C., GGP Limited
Partnership, Xxx Xxxxxxxx, Xxxx Bucksbaun, employees of Agent or any combination
thereof and (a) has a tangible net worth equal to or greater than thereof Agent
on the date of this Agreement and at the time of transfer, (b) employs in
comparable positions substantially all of the individuals on whom Owner has
relied directly or indirectly for the performance of Agent's duties hereunder
and (c) has information, management and reporting systems and national contracts
for the purchase of services and goods equal to or better than those of Agent at
the time of assignment.
ARTICLE VII
MISCELLANEOUS
7.1 Owner's Representative ("Owners Representative") whose name
and address are set forth in paragraph 2 of Exhibit A attached hereto shall be
the duly authorized representative of Owner for the purpose of this Agreement.
Agent shall be entitled to rely on the verbal or oral instructions of Owner's
Representative as the authority of Owner until Agent is instructed in writing as
to any change in Owner's Representative. Any statement, notice, recommendation,
request, demand, consent of approval under this Agreement shall be in writing
and shall be deemed given by Owner when made or given by Owner's Representative
or any officer of Owner and delivered personally to an officer of Agent or
mailed, addressed to Agent, at his address first above set forth in Exhibit A
attached hereto. Either party may, by
- 16 -
notice to the other, designate a different address for the receipt of the
aforementioned communications and Owner may, by notice to Agent, from time to
time, designate a different Owner's Representative to act as such. All
communications mailed by one party to another shall be sent by first class mail,
postage prepaid or Express Mail Service or other commercial overnight delivery
service, except that notices of default shall be sent by registered or certified
mail, return receipt requested, postage prepaid, Express Mail Service or other
commercial overnight delivery service with receipt acknowledged in writing.
Communications so mailed shall be deemed given or served on the date mailed.
Notwithstanding the foregoing, any notice, requests, consent, approvals and
other communications, other than notices of default or approvals of Annual
Budgets, and other communications, approvals or agreements which are required by
the express terms of other provisions of this Agreement to be in writing, may be
given by telegram, telephonic communication or orally in person. Agent and Owner
shall furnish to the other the names and telephone numbers of one or more
persons who can be reached at any time during the term of this Agreement in the
event of an emergency.
7.2 Agent shall, at its own expense, qualify to do business and
obtain and maintain such licenses as may be required for the performance by
Agent of its services.
7.3 Each provision of this Agreement is intended to be severable.
If any term or provision hereof shall be determined by a court of competent
jurisdiction to be illegal or invalid for any reason whatsoever, such provision
shall be severed from this Agreement and shall not affect the validity of the
remainder of this Agreement.
7.4 In the event either of the parties hereto shall institute any
action or proceeding against the other party relating to this Agreement, the
unsuccessful party in such action or proceeding shall reimburse the successful
party for its disbursements incurred in connection therewith and for its
reasonable attorney's fees as fixed by the court.
7.5 No consent or waiver, express or implied, by either party
hereto or of any breach of default by the other party in the performance by the
other of its obligations hereunder shall be valid unless in writing, and no such
consent or waiver shall be deemed or construed to be a consent or waiver to or
of any other breach or default in the performance by such other party of the
same or any other obligations of such party hereunder. Failure on the part of
either party to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder.
The granting of any consent or approval in any one instance by or on behalf of
Owner shall not be construed to waive or limit the need for such consent in any
other or subsequent instance.
7.6 The venue of any action or proceeding brought by either party
against the other arising out of this Agreement shall, to the extent legally
permissible, be in the state in which the Premises are located.
7.7 This Agreement may not be changed or modified except by an
agreement in writing executed by each of the parties hereto. This Agreement
constitutes all of the understandings and agreements between the parties in
connection with the `agency herein created.
7.8 Intentionally Deleted.
7.9 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their permitted successors and assigns, but shall not
inure to the benefit of, or be enforceable by, any other person or entity.
7.10 Nothing contained in this Agreement shall be construed as
making Owner and Agent partners
- 17 -
or joint venturers or as making either of such parties liable for the debts or
obligations of the other, except as in this Agreement is expressly provided.
7.11 This Agreement and the rights of Agent hereunder shall be
subject and subordinate to the right of Owner's mortgage lender and mezzanine
lender and upon the request of Owner, the Agent shall enter into subordination
agreement with Owner's mortgage lender and mezzanine lender containing such
terms and conditions as are required by such lenders.
7.12 Agent shall offer employment on a provisional basis to the
five (5) employees of the current property manage who are based at the Premises
effective on the date of this Agreement on substantially the same terms as they
currently employed.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
OWNER:
PARK PLAZA MALL, LLC, A Delaware limited liability company
By: PARK PLAZA 3, LLC, A Delaware limited liability company,
it general manager
By: /s/ Xxxx Xxxxxx
--------------------------------------
Its: EVP
AGENT:
GENERAL GROWTH MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
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