MANAGEMENT AND LEASING AGREEMENT
THIS AGREEMENT is made as of October 10, 1996, between 1290 PARTNERS,
L.P., a Delaware limited partnership, having an office at c/o ▇▇▇▇▇▇ Capital
Group, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Owner"), and TISHMAN
SPEYER PROPERTIES, L.P., a New York limited partnership, having an office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Manager" or "Agent").
PRELIMINARY STATEMENT
Owner owns fee title to the improved real property commonly referred to as
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Owner desires to engage Agent to manage and lease space at the Property
(as defined below), and Agent desires to accept the engagement, in accordance
with the terms of this Agreement.
Therefore, in consideration of the mutual agreements contained in this
Agreement, Owner and Agent agree as follows:
ARTICLE 1
DEFINITIONS, INTERPRETATION
1. Definitions. The following terms have the following meanings
throughout this Agreement:
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the first Person.
"Annual Budget" means an annual budget, prepared by Agent and acceptable
to Owner, containing on a month-by-month basis (a) the projected capital
improvements which will be made to the Property in a given Fiscal Year, and (b)
the projected operating income and operating expenses of the Property for a
given Fiscal Year, which budget has been approved pursuant to the provisions of
Section 3.1 (b) of this Agreement.
"Claim" means any claim, damage, loss, liability, obligation, demand,
defense, judgment, suit, proceeding, disbursement or expense (including
reasonable attorneys' fees or expenses as incurred).
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"Emergency Expense" means any expense which, in Agent's reasonable
discretion, is necessary to (a) protect the health, safety or welfare of any
Person in the immediate vicinity of the Property, (b) prevent immediate damage
or loss to the Property, (c) avoid the suspension of any necessary service in or
to the Property, or (d) avoid criminal or civil liability on the part of Owner
or Agent.
"Fiscal Year" means the twelve-month period commencing on January 1st and
ending on December 31st.
"Fixed Rent" means the fixed annual rent payable by a tenant under a Lease
for the initial, renewal or extension Lease term (as appropriate) excluding (a)
all electrical and other utility charges, (b) any share of increases in taxes or
payments in lieu of taxes (whether or not Owner is obligated to make payments of
real estate taxes or is excused from making payments pursuant to an exemption or
an abatement in whole or in part), wage rates, operating expenses or cost of
living or other similar increases, whether actual, estimated or otherwise, which
the tenant is required to pay under the Lease, (c) any amounts specifically
identified as payable for cleaning, heat, water, air conditioning or other
services, (d) all other items of additional rent, (e) any increases in the
annual fixed rent not expressly provided for in the Lease and agreed to after
the execution of the Lease, and (f) any consideration received by Owner from the
tenant under the Lease for consenting to an assignment or sublease, or for
accepting a surrender or other termination or cancellation, voluntary or
otherwise; and less any amounts paid by Owner for tenant improvements, tenant
allowances, decorations or installations or other tenant inducements costing, on
a per rentable square foot basis, in excess of an amount to be agreed upon in
each Annual Budget, which excess amount shall be amortized over the Lease term
with interest at the Interest Rate. Any rent abatements and so-called "free
rent" and "take-over costs" will be amortized over the Lease term and an equal
portion deducted from Fixed Rent for each Lease year. If the Lease provides for
(i) increases in the fixed annual rent based upon increases in the cost of
living index, porters' wages, operating costs or similar indices or formulas not
capable of precise mathematical determination at the time the Lease is executed,
or (ii) adjustments based upon fair market rental value, then such increase and
adjustments will not be considered in computing Fixed Rent; however, if the
annual rent at the commencement of a renewal or extension term, or pursuant to
an option covering additional space, is to be fixed based upon a fair market
rental value determination, then the fixed annual rent as so determined will
constitute Fixed Rent for purposes of computing any Leasing Commission payable
in connection therewith and any payment of the Leasing Commission due thereon
will be postponed until such determination is made.
"Governmental Authority" means the United States of America, the State,
the county or city of New York, the Borough of Manhattan or any agency,
department, commission, board or instrumentality of any of them.
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"Gross Revenue" means all (a) rent, additional rent and other charges and
revenues collected under the Leases or in connection with the Property, (b)
amounts collected from all licensees, concessionaires, and similar users of any
portion of the Property (including all amounts collected from vending machines
and coin-operated telephones) at the Property, and (c) proceeds of rental value
insurance or business interruption insurance to the extent paid to Owner in lieu
of any amounts provided for in clauses (a)-(b) above. Gross Revenue will not
include any (i) charges to tenants for above-standard tenant work, (ii) tenant
security deposits (except to the extent applied toward the payment of rent,
additional rent or other charges due under the Leases), (iii) interest on any
funds received in connection with the operation of the Property, (iv) insurance
proceeds (except as provided for in clause (c) above) or condemnation awards,
(v) amounts received on account of any abatement, reduction or refund of
property taxes, (vi) discounts or dividends on insurance policies, (vii) sums
collected through litigation (other than for nonpayment of rent, additional rent
or other charges due under the Leases), (viii) proceeds from the sale or
refinancing of the Property or any portion thereof or interest therein, (ix)
capital contributions to Owner by, or loans to Owner by, partners of Owner
whether or not held by Agent, or (x) amounts received as payments under loans
made to tenants prior to the date hereof (clauses (i)-(x), collectively,
"Excluded Proceeds"); provided that amounts received as payments under loans
made to tenants after the date hereof shall be included in "Gross Revenue". The
proceeds from any buy-out of all or a portion of the remaining term of a Lease,
or from any damage claims against a tenant for lost rent shall be amortized over
the remaining term of the subject Lease and included in the "Gross Revenue" of
Owner in equal monthly installments until the earlier of (i) re-occupancy of the
subject tenant space or (ii) expiration of the term of the subject Lease.
"Insurance Requirements" means orders of any Board of Fire Underwriters or
similar body, or any notice of non-compliance from Owner's insurance carriers,
which comes to Agent's attention.
"Interest Rate" means the annual fluctuating rate equal to two percent
(2%) above the rate of interest announced publicly by Citibank, N.A. in New
York, New York as its base rate (or the rate equivalent to its base rate).
"Lease" means any lease, sublease, license or other concession or other
occupancy agreement for space at the Property and any amendment or supplement
thereto.
"Leasing Commission" means a leasing commission calculated in accordance
with and paid at the times and in the manner specified in Article 8, Section
11.5 and Exhibit "E".
"Leasing Guidelines" means leasing guidelines for the Property for a given
Fiscal Year, prepared by Agent and acceptable to Owner, containing (a) proposed
leasing
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activities for the Property for the ensuing Fiscal Year, and (b) a schedule of
acceptable economic terms with respect to Leases being offered to prospective
tenants of the Property and renewals or extensions of existing Leases (including
any rent abatements, so-called "free rent" and "take-over costs", construction
allowances and similar items).
"Legal Requirements" means any law, ordinance, order, rule or regulation
of a Governmental Authority which pertains to the Property, Owner or Agent (as
managing or leasing agent of the Property).
"Management Fee" means an amount equal to one and one half percent (1.5%)
of Gross Revenue, per year, which amount will be payable monthly in accordance
with Article 6.
"Marketing Plan" means a written plan, prepared by Agent and acceptable to
Owner, for the leasing and marketing of the Property, as provided in Sections
3.15 and 7.2.
"Non-Discretionary Expense" means any expense which, in Agent's reasonable
discretion, is necessary to (a) comply with any Legal Requirement relating to
the Property, (b) comply with any of Owner's obligations as landlord under any
Lease, (c) comply with any of Owner's other contractual obligations under
agreements approved by Owner or entered into by Agent on behalf of Owner
pursuant to this Agreement, (d) fulfill Owner's real estate tax obligations, (e)
maintain insurance for the Property in accordance with the terms of this
Agreement or (f) pay utility bills for the Property.
"Nyprop, L.L.C." means Nyprop, L.L.C., a Delaware limited liability
company in which no less than 50% of the membership interests are owned directly
or indirectly by Agent and/or its Affiliates.
"Operating Account" means an account at a financial institution selected
by Owner entitled "Tishman Speyer Properties, L.P., as Agent on behalf of 237
Park Partners, L.P.--Operating Account", which account will bear interest.
"Outside Broker" means a real estate broker other than Agent assisting
with leasing efforts at the Property. The parties do not contemplate any Outside
Brokers being utilized except in connection with the representation of
prospective tenants.
"Outside Broker's Commission Agreement" means a commission agreement
between Owner and an Outside Broker.
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"Person" means a natural person, corporation, partnership, limited
liability company, trust, joint venture, unincorporated association,
Governmental Authority or other entity.
"Property" means the improved real property commonly referred to as ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ and includes all
easements, licenses, grants, permits, franchises, privileges, appurtenances and
other rights pertaining thereto.
"Security Deposit Account" means an account at a financial institution
selected by Owner entitled "Tishman Speyer Properties, L.P. Special Account on
behalf of Tenants at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇," which account will
bear interest for the benefit of the tenants if and to the extent required by
the Leases or by applicable Legal Requirements.
"State" means the State of New York.
2. Interpretation.
(a) The singular includes the plural and the plural includes the
singular.
(b) The word "or" is not exclusive and the word "including" is not
limiting.
(c) References to a law include any rule or regulation issued
under the law and any amendment to the law, rule or regulation.
(d) References to an Article, Section or Exhibit mean an Article,
Section or Exhibit contained in or attached to this Agreement.
(e) The caption headings in this Agreement are for convenience and
reference only and do not define, modify or describe the scope or intent of any
of the terms of this Agreement.
(f) This Agreement will be interpreted and enforced in accordance
with its provisions and without the aid of any custom or rule of law requiring
or suggesting construction against the party drafting or causing the drafting of
the provisions in question.
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ARTICLE 2
APPOINTMENT, OTHER ACTIVITIES
1. Appointment. Owner hereby engages Manager to manage and operate the
Property and authorizes Manager to exercise, upon all the terms and conditions
hereof, such powers as may be necessary and appropriate for the management of
the Property. Manager hereby accepts such engagement and agrees to perform all
supervisory, management and leasing services and functions reasonably necessary
or incidental to the leasing, management and operation of the Property. Agent
has secured and will keep in effect during the term of this Agreement all
necessary licenses, permits and authorizations to enable Agent to perform all of
its obligations under this Agreement. As soon as practicable after the date
hereof, Owner will (a) notify the tenants and other occupants of space at the
Property and any Persons holding a mortgage on any portion of the Property and
other signatories to the instruments referred to in Section 3.6 of the
appointment of Agent as the exclusive managing and leasing agent of the Property
and (b) instruct the tenants, occupants and mortgagees and such other
signatories to direct all payments and notices under their respective agreements
with Owner to Agent.
2. No Liability for Past Acts or Omissions. Agent will not be liable
for any act or omission of any Person (including Owner and any previous property
manager or leasing agent) with respect to the Property for any period prior to
the date of this Agreement.
3. Other Activities. Owner understands that Agent and its Affiliates
engage in various development, management, leasing and other real estate
activities not related to the Property. Agent and its Affiliate have the right
to engage in these activities (whether or not competitive to the Property) and
to receive distributions and compensation with respect to these activities.
Agent will act in good faith and deal fairly with Owner when engaging in the
services described in this Agreement.
ARTICLE 3
MANAGEMENT RESPONSIBILITIES
1. Submission of Budgets.
(a) As soon as practicable but not later than forty-five (45) days
after the date of this Agreement, Agent will prepare and submit to Owner for its
consideration and approval the proposed Annual Budget for the remaining portion
of the Fiscal Year in which this Agreement is executed and delivered. On or
before December 1st of each year thereafter, Agent will prepare and submit to
Owner for its
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consideration and approval the proposed Annual Budget for the ensuing Fiscal
Year. Prior to approval of the initial Annual Budget, Agent will operate in
accordance with the Interim Budget attached as Exhibit A.
(b) Agent will consult with Owner as to the assumptions used in
preparing the proposed Annual Budget and will make all necessary revisions
thereto. Owner will approve or disapprove the proposed Annual Budget (and
revisions thereto) within thirty (30) days after submission by Agent. If Owner
disapproves any portion of the proposed Annual Budget, then its disapproval will
be accompanied by a description, in reasonable detail, of the specific
objection(s). Agent will promptly revise the proposed Annual Budget in
accordance with Owner's objection and resubmit the proposed Annual Budget to
Owner. If Owner approves any portion of the proposed Annual Budget, then Owner
will promptly communicate such partial approval to Agent. Owner will not
unreasonably withhold or delay its approval to the proposed Annual Budget (or to
any revision thereto).
(c) Owner acknowledges that Agent has provided services prior to
the date hereof in connection with the transition of ownership and management of
the Property from Owner's and Agent's predecessor and has agreed to pay Agent
$50,000 per month (prorated for any partial month) for such services for the
period commencing August 1, 1996 and ending on the date of execution of this
Agreement. Owner shall pay Agent such amount on the date of execution of this
Agreement.
2. Adherence to Budgets.
(a) Agent will use reasonable efforts to cause the actual costs of
operating and maintaining the Property not to exceed the Annual Budget (either
in total or in any line item). Agent will not, without Owner's prior approval,
incur any operating expenses or make any capital expenditures in excess of (i)
one hundred and ten percent (110%) of the amount set forth in any line item in
the Annual Budget or (ii) one hundred and five percent (105%) of the total
amount of the Annual Budget (each such excess, a "material variance" for
purposes of this Agreement). To the extent ascertainable in advance, Agent shall
notify Owner in advance of any projected material variance from the Annual
Budget (either in total or in any line item). Agent shall not transfer any
amounts from one expense line item to another (other than from any contingency
item to a specific line item) without Owner's prior written consent.
(b) If Owner fails to approve an Annual Budget (or any portion
thereof) for a given Fiscal Year, then Agent will continue to operate under the
most recent Annual Budget (including any partial approval of the then proposed
Annual Budget), provided that Agent may incur non-budgeted Emergency Expenses
and, subject to paragraph 3 below, Non-Discretionary Expenses.
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3. Emergency Expenses; Non-Discretionary Expenses. Agent may, at any
time, incur Emergency Expenses and, subject to the provisions of this paragraph,
Non- Discretionary Expenses without Owner's prior approval. Agent will give
Owner prompt notice of all Emergency Expenses incurred to the extent that the
Emergency Expenses exceed or are not contemplated under the Annual Budget. Agent
will give Owner reasonable notice of all Non-Discretionary Expenses to the
extent that the Non- Discretionary Expenses would constitute a material variance
prior to payments (in the case of items described in clauses (d), (e) and (f) of
the definition of Non-Discretionary Expenses) and prior to incurrence (in the
case of items described in clauses (a), (b) and (c) thereof). Agent will refrain
from paying any such Non-Discretionary Expenses upon receipt of written notice
from Owner.
4. Operation, Maintenance and Repairs; Payments. Subject to the
availability of funds therefor:
(a) Agent will operate and maintain the Property in a manner
commensurate with that of real properties of a size, character and quality
comparable to the Property.
(b) Agent will provide tenants with (i) the services expressly set
forth in the Leases in existence as of the date of this Agreement, (ii) the
services set forth in the Leases hereafter entered into by Owner, (iii)
additional services customarily provided to tenants for additional charges to
such tenants, and (iv) other services which Owner may approve from time to time.
(c) Agent will cause all ordinary repairs and alterations to be
made to the Property and its mechanical systems and equipment including, but not
limited to, interior and exterior cleaning, plumbing, electrical, HVAC,
carpentry and decorating, and such other normal maintenance and repair work as
may reasonably be deemed desirable or necessary by Owner or Agent, subject only
to the other limitations contained in this Agreement. Agent shall recommend to
Owner the purchase and installation of items of new or replacement equipment
when Agent believes such purchase to be necessary or desirable.
(d) Agent will pay for the account of Owner, to the extent
sufficient funds are available for such purpose from Gross Revenues or from
other funds made available by Owner, and subject to the limitations in this
Agreement, all costs incurred in operating, maintaining and repairing the
Property, when such costs become due and payable, including, but not limited to:
debt service under all mortgages and other payments due to Owner's mortgagees,
as directed by Owner; water charges; sewer rents; assessments and all other
charges and impositions payable with respect to the Property; all utility costs;
labor and payroll for employees of the Property; and the cost of operations,
maintenance, repairs and improvements to the Property. Notwithstanding any
provision to the contrary in this Agreement, at no time shall it
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be the responsibility of Agent to advance money for payments of any obligations
of Owner when funds are not available, but Agent agrees to advise Owner on a
timely basis when funds are not available for said payments, or when Agent
believes anticipated expenses will exceed available funds.
5. Enforcement of Leases. Agent will take necessary actions to enforce
the terms of the Leases and to collect all rent, additional rent and other
charges due and payable thereunder. Owner authorizes Agent to (i) request,
demand, collect and receive all rent, additional rent and other charges, and
(ii) subject to Owner's prior approval, settle or compromise the payment of such
amounts. For individual settlements or compromises where the disputed amount is
less than Fifty Thousand Dollars ($50,000), Agent need not obtain the prior
approval of Owner, but will give Owner notice of the settlements or compromises.
Agent will keep all tenants informed of all rules and regulations affecting the
Property. Agent shall use reasonably diligent efforts to secure full compliance
by the tenants with the terms and conditions of their respective Leases, and to
this end, use reasonably diligent efforts to see that all tenants are informed
with respect to such rules, regulations and notices as may be promulgated by
Owner. Agent shall not knowingly take any action which would violate any
tenant's Lease, and shall promptly deliver to Owner any notice of default
received from a tenant and use reasonable efforts and due diligence to cure such
default. Agent shall use reasonably diligent efforts to collect and shall
receive for the account of Owner all rents, receipts, accounts, revenues and all
other income from the Property including, with the prior written consent of
Owner and using counsel selected by Agent (from a list of reputable law firms
approved by Owner as provided in Section 5.3), instituting any and all legal
actions or proceedings (in the name of Owner, if necessary or advisable)
required for the collection of revenues from the Property or the ousting or
dispossession of tenants or other persons therefrom.
6. Compliance with Legal Requirements and Contracts. Agent will use its
reasonable efforts to comply with and cause the Property to comply with all
Legal Requirements and will obtain all necessary certificates of occupancy,
licenses or operating permits for the operation of the Property. In addition,
Agent will obtain, at Owner's sole cost and expense, any business license and/or
operating permit which may be required for the operation of the Property. Agent
shall, at its own expense, (i) maintain its corporate or partnership existence;
and (ii) qualify to do business and maintain (or cause one or more of its
employees to maintain) a real estate brokerage license in the State of New York.
Agent will also use its reasonable efforts to comply with and cause the Property
to comply with all terms and provisions of (i) any mortgage, deed of trust,
security agreement or other agreement encumbering or affecting the Property or
any personal property located at the Property, a copy of which is provided to
Agent, (ii) any casualty insurance policy insuring Owner's interest in the
Property or any personal property located at the Property, and (iii) any other
relevant conditions or restrictions affecting the Property, in each case so long
as Agent is aware of such terms and provisions. If Owner elects to contest
compliance
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with any of the foregoing, Owner will notify Agent and Agent will participate in
the contest to the extent reasonably requested by Owner. Owner will bear all
costs of such compliance (or contest). Agent shall promptly furnish Owner with
copies of all material notices which are sent by any mortgagee, space lessee, or
ground lessee to Agent.
7. Books and Records.
(a) Agent will maintain in a manner consistent with good
accounting principals, practices and procedures, a system of books and records,
in detail reasonably acceptable to Owner, for the Property. All books and
records will be prepared on a Fiscal Year basis using the accrual method of
accounting (unless Owner requests that the books and records be prepared on a
cash basis). All books, records and supportive documentation will be maintained
in a prudent manner at the Property or at such other place as Agent and Owner
determine. All books, records and supportive documentation will be the sole
property of Owner, and Agent shall, upon request of Owner, deliver any and all
such documentation to Owner but Agent may retain copies to the extent Owner has
not identified such material to Agent as constituting proprietary information.
(b) Owner and its representatives will have the right, upon
reasonable prior notice to Agent, to have access to (and audit) the books,
records and supportive documentation of the Property during normal business
hours during the term of this Agreement. Should the audit discover any error in
record keeping, Agent will immediately correct such error.
(c) Agent will use reasonable good faith efforts to keep all
financial information concerning the Property confidential at all times during
and after the term of this Agreement; and no such information shall be given to
any third party (other than professional firms retained in accordance with this
Agreement) without the prior written consent of Owner except as may be required
by law or by legal proceedings.
8. Reports and Statements. Agent will prepare and submit to Owner the
following reports and statements, each of which will be in form and substance
reasonably acceptable to Owner and Agent:
(a) By the fifteenth (15th) business day of each calendar month, a
tenant report setting forth (i) the amount of leased space and vacant space for
the preceding calendar month, (ii) the amount of rent due and the status of
payments as of the end of the preceding calendar month, and (iii) such other
tenant related information as Owner reasonably requests.
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(b) Within a reasonable period of time after Owner's request, a
tenant improvement budget setting forth in reasonable detail the estimated cost
of making the tenant improvements and such related information as Owner
reasonably requests.
(c) By the fifteenth (15th) business day of each calendar month,
an operating statement comparing the amount of actual expenses incurred with the
amount set forth in the Annual Budget for the preceding month. The operating
statement will be supported by the following documents:
(i) a rent roll;
(ii) a cash disbursement journal and receipts reflecting the
cut- off date used for the monthly statement;
(iii) a reconciliation of security deposit accounts, if any;
(iv) a computation of the management fee and the leasing
commissions; and
(v) copies of bank statements for the period corresponding
to the reconciliation.
(d) By the forty-fifth (45th) day following the end of each
calendar quarter (i) a summary variance report comparing actual results for the
quarter and year to date with the Annual Budget, together with detailed
explanation for material variances, and (ii) property level financial statements
(unaudited) for the quarter and year to date, together with projections through
the end of the Fiscal Year.
(e) Within a reasonable period of time after Owner's request, a
report setting forth in sufficient detail all information regarding the
ownership and operation of the Property reasonably necessary for Owner to
prepare its federal, state and local tax returns.
(f) Agent will provide such other information or documents which
Owner may reasonably request from time to time, within a reasonable period of
time after Owner's request, to the extent that such information or documents are
available without unreasonable effort or expense on behalf of Agent.
(g) Agent shall furnish to Owner, on a timely basis following
receipt by Agent, any and all notices materially affecting the Property
including, without limitation, notices from any taxing or other governmental
authority and notices of violations of law or municipal ordinances or orders
issued by any governmental authority or by any Board of Fire Underwriters or
other similar body. Agent shall obtain bills for real estate and personal taxes,
improvement assessments and other like
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charges which are or may become liens against the Property and recommend payment
or appeal thereof. Agent shall promptly forward such bills to Owner and shall
ascertain and advise Owner of any penalties for late payment or discounts for
early payment.
(h) Agent shall promptly notify Owner of any known violation of
any Legal Requirements or any Insurance Requirements; advise Owner of any areas
known to Agent in which the Project does not fully comply with any such Legal
Requirements and/or Insurance Requirements; and, unless expressly advised not to
do so by Owner, do or cause to be done all such acts or things in or about the
Property as shall be reasonably necessary or desirable to comply with any and
all Legal or Insurance Requirements and to correct all violations thereof, and
promptly furnish to Owner evidence satisfactory to Owner of such compliance
and/or corrections.
9. Annual Audit; Tax Returns.
(a) Agent will use reasonable efforts to have a nationally
recognized certified public accounting firm (selected by Owner) audit the books
and records of the Property. Agent will cause the accounting firm to deliver to
Owner a copy of the accounting firm's opinion together with the related
financial statements as soon as reasonably practicable after the close of the
Fiscal Year, and Agent will require the accounting firm to deliver same not
later than April 1 of the following Fiscal Year. Owner will bear all costs of
the audit.
(b) Agent will require such accounting firm to prepare any tax
returns and statements which must be filed in connection with the ownership,
operation or maintenance of the Property. Agent will submit the returns and
statements to Owner for its approval prior to filing and, once approved, will
file the returns and statements in accordance with applicable Legal
Requirements. Agent will use reasonably diligent efforts to require the
Property's accountants to complete the Partnership tax returns for distribution
to Owner's constituent partners within 60 days following the end of each Fiscal
Year. Owner will bear all costs of preparing and filing the tax returns and
statements.
(c) Agent acknowledges that Metropolis Realty Trust, Inc., an
indirect partner in Owner, intends to become a public reporting company under
the Securities Exchange Act of 1934. Agent agrees to maintain the Property books
and records in a manner and to use reasonably diligent efforts to require the
Property accountants to prepare financial statements and reports to enable
Metropolis Realty Trust, Inc. to file on a timely basis all documentation
required to be filed by a public reporting company, including without limitation
forms 10K, 10Q and 8K.
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10. Employees.
(a) Agent will on Owner's behalf and for Owner's account employ,
train and supervise such employees as are necessary for the operation and
maintenance of the Property in accordance with this Agreement. All non-union
employees will be employed by Agent on behalf of Owner; however, (i) Owner shall
have the right to request Agent to replace any key on-site employees responsible
for management of the Property and leasing of the Property (whether on-site or
off-site), including, without limitation, all on-site property managers and all
leasing agents, and (ii) Owner will reimburse Agent for all employee
compensation paid to such employees identified on Exhibit A hereto in accordance
with Section 6.2. Agent agrees to hire for Owner's account (and at Owner's
expense) the building employees identified on Exhibit B hereto currently
employed by ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.L.C. from whom Owner is acquiring the
Property and, (i) subject to the provisions of the next sentence, to assume on
behalf of Owner (and at Owner's expense) such party's labor agreements relating
to union employees, and (ii) with respect to non-union employees, provide such
employees (at Owner's expense) the same wages and vacation and severance accrual
rules as are currently applicable to them (as provided in Exhibit C), such other
benefits as are customarily provided by Agent to its comparable employees, and
carry over such employees' accrued vacation and severance benefits. Owner shall
be responsible for any obligations to such currently existing employees of ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Associates LLC (both union or non-union) for accrued vacation
through the date hereof and for any severance payments regardless of (i) when
such employee is terminated or (ii) whether or not Agent terminates such
employee, or the grounds for termination, unless such employee accepts
employment with Agent or an affiliate of Agent on another project. In the event
an employee is terminated at the Project for reasons unrelated to his job
performance or personal character, Agent will use its good faith efforts to
relocate such employee to another building under its management supervision.
Agent and each employee who is responsible for handling any of Owner's funds
will at all times be bonded by a fidelity bond (commercial blanket). Such bond
shall provide coverage of at least $1,000,000. Agent will promptly deliver
satisfactory evidence of such bond to Owner. Without limiting the generality of
the foregoing, Agent will:
(i) provide such personnel as it deems necessary (subject to
the approval of Owner) for the proper operation and
maintenance of the Property so that the Building will be
operated, maintained, and staffed on a full-time basis
in a manner which will always at least equal the
standard of care and services rendered by leading
management companies performing the same type of
services rendered for first class buildings in New York
City. The number, duties and cost of all personnel for
which Owner will compensate Agent pursuant to Section
6.2 shall be
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provided in the Annual Budget. Subject to the provisions
in this Section 3.10, the work performed by on-site
employees shall be exclusively for the benefit of the
Property unless otherwise indicated in the Annual Budget
or otherwise agreed to by Owner in writing. Agent shall
be solely responsible for supervising and coordinating,
on behalf of Owner, all terms and conditions of
employment for the employees, including obligations
under any collective bargaining agreement or federal or
state labor laws. In the event of any labor dispute
affecting Agent's duties hereunder, Agent's obligation
shall continue in full force and effect and, without
reducing the said obligations of Agent, Agent shall make
reasonable efforts to use supervisory personnel to
continue Agent's services hereunder with minimal
disruption under the circumstances. Agent agrees to keep
Owner reasonably informed on any union-related
negotiation or dispute.
(ii) provide a schedule of employees (in the format of
Exhibit D --------- attached hereto and hereby made a
part hereof) to be employed "on-site" in the direct
management of the Property. Exhibit D (which may be
revised annually or more --------- frequently, by a
writing executed by the Owner and the Agent) shall
include the number of employees and their title and
salary range and shall also indicate which employees are
bonded or are covered under the Agent's comprehensive
crime insurance policy. The parties hereto agree that
the services provided by any employee position listed on
Exhibit D may be utilized for the Property as well
--------- as any property owned by an affiliate of Owner
and managed by Agent. However, the percentage of time
dedicated by that position shall not be less than the
percentage of that position's total annual compensation
that is allocated to the Property in the then effective
Annual Budget. The Owner and Agent agree that each
Annual Budget shall specify, as to each employee
position on Exhibit D, the percentage of that position's
total annual --------- compensation that is to be
allocated to the Property.
(b) Agent, on behalf of Owner, will be responsible for the
preparation of, and will timely file, all local, state and federal labor payroll
tax reports and other similar reports, and will timely make payments of all
withholding and other payroll taxes with respect to its employees in accordance
with applicable Legal Requirements. Without in any way limiting the foregoing,
Agent represents, warrants and agrees that
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it will pay and/or deduct from the compensation of workers of the Property
(whether union or non-union) all contributions, taxes and other payments or
charges required to be paid by an employer with respect to the compensation
paid, and to be paid, to its employees under the provisions of all applicable
state unemployment insurance, disability benefits and withholding tax laws, the
Federal Insurance Contributions Act, the Federal Unemployment Tax Act and the
Internal Revenue Code of 1986, as amended, and will comply with all other local,
state and federal laws, regulations and requirements applicable to union workers
at the Property or affecting their compensation or conditions of employment or
applicable to Agent for the performance of the services hereunder, including,
without limitation, the Fair Labor Standards Act, the Occupational Safety and
Health Act, the Equal Employment Opportunity Act, the Fair Employment Practices
Act, the Immigration Reform and Control Act of 1986, the Employee Retirement
Income Security Act of 1974 and any labor union contract in effect.
11. Tax Assessments and Condemnation. At Owner's request, Agent will
render advice and assistance to Owner in connection with negotiating and
prosecuting (a) any claims for the increase, abatement, reduction or refund of
property taxes affecting the Property or the property known as 2 Broadway, and
(b) any awards for any public taking of any portion of the Property. Owner will
reimburse Agent for Agent's out-of-pocket expenses incurred in connection with
rendering such advice or assistance. Agent will not agree to the terms of any
such real estate or condemnation settlement (relating to either the Property or
2 Broadway) without Owner's prior written approval.
12. Improvements. Agent will supervise and coordinate all customary and
ordinary capital improvements to the Property and will assist Owner in
determining which improvements should be made to the Property. Without limiting
the generality of the foregoing, Agent shall provide the associated supervision
and direction for the installation of such improvements and alterations to a
tenant's premises as may be required by the terms of any lease with such tenant
and, at the cost and expense of such tenant or of Owner (as set forth in the
lease or otherwise approved in writing by Owner in advance), provide the labor
and materials, through contractors approved in writing by Owner or Owner's
architect or consultant to perform such alterations and installations to a
tenant's premises in the Property as are required by the terms of any lease with
such tenant. Owner will reimburse Agent for Agent's out-of-pocket expenses
incurred in connection with rendering such services.
13. Consent to Tenant Alterations to Property. At no additional expense
to Owner for the time dedicated to such work, Agent shall review tenant
alterations and installations and may (subject to the next sentence) consent to
and approve such alterations and installations provided for in the respective
Leases of tenants, subject to compliance by the tenants with the terms and
conditions of the applicable Leases and the conditions set forth below in this
Section. With respect to the alterations and
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installations not provided for by such Leases (and tenant alterations and
installations contemplated in a Lease but for which the plans are not a part of
such lease), Agent is authorized to consent to and approve such work provided:
(i) such alterations and improvements are made solely at tenant's expense
(including any expenses incurred by Agent or Owner in connection with such work)
and in accordance with all Legal Requirements and Insurance Requirements, (ii)
such alterations and installations do not affect the basic structure or systems
of the Property or interfere with other tenants and are not outside of the
Tenant's demised premises (e.g., do not include roof installation), and (iii)
unless Owner otherwise agrees in writing, tenant shall, at the expiration or
termination of its Lease, be required to remove any such alterations and
installations which involve a cost of removal greater than Twenty-Five Thousand
Dollars ($25,000.00).
14. Tenant Complaints and Requests. Agent will handle promptly all
complaints and requests made by the tenants at the Property.
15. Advertising; Public Relations. Not later than the date on which the
initial Annual Budget is prepared, Agent will prepare for Owner's review and
approval a Marketing Plan for the remaining portion of the Fiscal Year in which
this Agreement is executed and delivered. Such Marketing Plan will include a
strategy for advertising and marketing the leasing of space at the Property,
including specific newspapers, trade journals, brochures, consultants and other
appropriate media which the Agent recommends utilizing, and an estimated amount
budgeted for each such use (which amount will also be included in the Annual
Budget). The Marketing Plan, when approved in writing by Owner, shall form the
basis on which the Property's leasing program will be marketed. Agent will
prepare for Owner's review and approval a Marketing Plan for each ensuing Fiscal
Year, together with and in the manner provided in Section 3.1 with respect to
the Annual Budget. Agent shall implement, or supervise the implementation of,
the leasing and marketing of the Property so long as it does so in accordance
with a Marketing Plan and Annual Budget that has been approved by Owner.
16. General Duties. In addition to the responsibilities set forth in
this Article 3, Agent will perform all other services or activities incidental
to the normal and professional operation by Agent of properties similar in type,
character and quality to the Property. Agent shall: (a) assist in the review and
preparation of leasing plans and programs and render assistance in presentations
to prospective tenants, financing groups, governmental officials, civic and
business groups and other persons and entities selected or designated by Owner,
(b) in the event of any refinancing of the Property, cooperate in all respects
and in good faith with Owner and any lender having a security interest in or
lien on the Property ("Lender"), including, without limitation, promptly upon
notice from Owner, executing and delivering any and all such agreements and
establishing and maintaining any and all such accounts as may be required by
Lender in connection with the Property (including, without limitation,
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"lock-box" accounts, whether held by Agent or Lender), provided that they do not
materially modify Agent's rights, or materially expand Agent's obligations,
under this Agreement or otherwise, or subject Agent to any personal liability.
Agent shall comply with the requirements of any Lender brought to the attention
of Agent by Owner regarding matters as budget and lease approvals, requisition
procedures and other similar matters, and (c) use reasonable efforts to prevent
the release of any Hazardous Materials on, under or at the Property, to
immediately notify Owner when Agent is made aware of any such release, and to
cooperate in Owner's efforts to remove and/or remediate any such release and, at
Owner's request, to coordinate the removal of any Hazardous Materials discovered
at the Property. For purposes of this Agreement, "Hazardous Material" means and
includes any hazardous substance or any pollutant or contaminant defined as such
in (or for purposes of) the Comprehensive Environmental Response, Compensation
and Liability Act, any so-called "Superfund" or "Superlien" law, the Toxic
Substances Control Act, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect (collectively, the "Environmental Statutes").
ARTICLE 4
BANK ACCOUNTS, DISBURSEMENTS
1. Operating Account. Agent will establish and maintain the Operating
Account. Agent will deposit all Gross Revenues and Excluded Proceeds (other than
tenant security deposits, unless some are applied toward the payment of rent,
additional rent or other charges due under the Leases) received by Agent with
respect to the Property into the Operating Account. Except as otherwise provided
herein, Agent will pay in a timely manner all expenses for the Property from the
Operating Account to the extent that the expenses are contemplated in the Annual
Budget, constitute Emergency Expenses or Non-Discretionary Expenses or are
otherwise approved by Owner.
2. Security Deposit Account. Agent will establish and maintain the
Security Deposit Account in accordance with applicable Legal Requirements. Agent
will deposit all security deposits received by Agent from tenants of the
Property into the Security Deposit Account. Withdrawals from the Security
Deposit Account may only be made by an authorized and bonded employee of Agent
and may only be used to refund security deposits to tenants or cure defaults of
tenants in accordance with their respective Leases. Any security deposits which
are in the form of letters of credit, marketable instruments or other cash
equivalents shall be held by Agent in safekeeping in a responsible and
appropriate fashion.
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3. Shortfalls; Advances.
(a) If, at any time, the funds in the Operating Account are not
sufficient to pay for any expenses of the Property (including the obligations of
Owner hereunder), then Agent will promptly notify Owner of such anticipated
shortfall.
(b) Owner will bear all expenses of owning, operating and
maintaining the Property, including Agent's expenses in connection with the
performance of its responsibilities under this Agreement, and Agent will not be
obligated to advance any of its own funds on behalf of Owner or otherwise incur
any personal obligation for the account of Owner.
4. Payments to Owner. Agent shall remit to Owner, within 15 days
following the end of each fiscal quarter, all rents, receipts, revenues and
other income from the Property remaining after payment of those items provided
for under this Agreement, if any, in a manner as directed by Owner, with Agent
retaining not less than $250,000 for working capital plus budgeted reserves.
ARTICLE 5
MANAGEMENT AUTHORITY, CONTRACTS
1. General Authority. (a) Agent will have the authority to enter into
contracts and incur expenses on behalf of Owner for all goods, services and
supplies necessary or advisable in connection with the operation and maintenance
of the Property in accordance with this Agreement to the extent such expenses
are contemplated in the Annual Budget, constitute Emergency Expenses or real
estate taxes, utility charges or (in the event an approved Budget is not in
effect and subject to the other limitations provided herein) other
Non-Discretionary Expenses or are otherwise reasonably approved by Owner.
Notwithstanding the foregoing, any such contract that requires annual payment(s)
which total in excess of $250,000, or which has a term of more than one year, or
which is with an affiliate of Agent, or which would cause any line item of the
Annual Budget to be exceeded by more than a material variance, shall require the
prior written consent of Owner. Together with Agent's request for consent to any
such service contract, Agent shall deliver to Owner a copy of the proposed
contract, a statement of the relationship, if any, between Agent (or the person
or persons in control of Agent) and the party which will supply such goods or
services under the proposed contract, and supporting analysis, if any.
(b) All service contracts shall, unless expressly approved by
Owner: (i) include a provision for cancellation thereof (without penalty) by
Owner upon not more than 60 days' written notice, (ii) require that all
contractors provide evidence of
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insurance specified in paragraph (d) below, and (iii) if for work of a nature
which would entitle the contractor to file a lien against the Property, include,
unless waived by Owner, a provision requiring the contractor to provide lien
waivers in accordance with the provisions of the New York Lien Law, in
connection with work to be performed under the terms of the contract.
(c) Agent shall require that each contractor engaged to perform
any work at the Property deliver to Agent a Certificate of Insurance, evidencing
insurance coverage maintained, at such contractor's expense, in no less than the
following amounts: (i) Worker's Compensation -- statutory amount; (ii)
Employer's Liability -- statutory amount; (iii) Comprehensive General Liability
-- $1,000,000 combined single limit for personal injury and property damage; and
(iv) Automobile Liability -- $100,000/$300,000 single combined limit.
2. Execution of Contracts. All contracts permitted under this Agreement
may be signed by Agent as agent for Owner. Agent will disclose Owner's existence
and identity to all third-party contractors. Agent will use reasonable efforts
to have each contract include an exculpatory clause (similar to the clause set
forth in Section 10.5(a)) limiting Owner's obligations under the contract to
Owner's interest in the Property.
3. Use of Counsel and Other Professionals. If Agent deems it necessary
or desirable to retain attorneys, architects, accountants, engineers or other
third-party professionals, then Agent may retain, on behalf of Owner and at
Owner's expense, professionals selected from a list of professionals
pre-approved by Owner or, if not on such list, with Owner's prior written
consent.
4. Limitation of Authority. Agent will not, without Owner's prior
approval (a) convey, transfer, pledge or encumber any property or other asset of
Owner, (b) institute or defend any lawsuits or other legal proceedings on behalf
of Owner, (c) execute, amend or terminate any Leases, (d) obligate Owner for the
payment of any fee or commission to any real estate agent or broker (other than
Agent in accordance with this Agreement), or (e) borrow money in the name of
Owner.
5. Value of Goods, Services and Supplies. Agent will use reasonable
efforts to ensure that the consideration paid for any goods, services or
supplies obtained by Agent for the Property will not exceed the amount
ordinarily paid for such goods, services or supplies for properties
substantially similar to the Property. At Owner's request, Agent will procure
competitive bids for the goods, services or supplies obtained by Agent for the
Property. Owner understands, however, that with respect to procuring competitive
bids, accepting services from the lowest bidder may not necessarily be in the
best interest of Owner. Owner will be entitled to receive the benefit of all
rebates, discounts or commissions obtained with respect to all goods, services
and supplies of the Property.
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6. Contracts with Affiliates. Agent may contract with any of its
Affiliates to provide goods, services or supplies under this Agreement so long
as (a) Agent discloses the relationship to Owner, (b) the economic and material
non-economic terms of the contract are reasonable and no more favorable than
terms generally available from third parties of comparable experience providing
a similar scope and quality of goods, services or supplies, (c) such contract
otherwise conforms to the requirements of this Article 5, and (d) Owner has
given its written approval of such contract.
ARTICLE 6
COMPENSATION FOR MANAGEMENT SERVICES
1. Management Fee. Owner will pay the Management Fee to Agent on or
before the fifth (5th) business day of each calendar month, for its services in
managing the Property for the immediately preceding calendar month. If this
Agreement commences on a date other than the first day of a calendar month or if
the term expires or is terminated on a day other than the last day of a calendar
month, then the Management Fee will be prorated for such partial month on the
basis of a thirty (30) day month.
2. Reimbursement. Owner will reimburse Agent, on or before the fifth
(5th) business day of each calendar month, for all reasonable out-of-pocket
expenses incurred by Agent directly related to the performance of its
responsibilities under this Agreement, to the extent set forth in the Annual
Budget. Owner understands that Agent's out-of-pocket expenses with respect to
the Property will include items such as (a) costs of preparing printed forms,
notices, checks, stationary, envelopes and similar items, (b) telephone,
telecopier and other communication expenses, (c) postage, delivery and
photocopying costs, (d) entertainment expenses (including meals) where
appropriate and reasonable (e.g., the cost of occasionally entertaining key
building facility persons and tenants), (e) costs of advertising and engaging in
promotional activities (including the preparation of brochures and other
marketing materials) to the extent permitted herein, and (f) costs of insurance
required to be maintained by Agent pursuant to Section 9.2 to the extent
permitted therein. Owner will also reimburse Agent for (i) all compensation paid
to on-site employees of Agent (such as base salaries, bonuses, medical benefits,
retirement benefits, other fringe benefits, payroll taxes and any severance
payments), (ii) the fair and equitable portion of such compensation paid to
off-site employees of Agent working on matters relating to the Property to the
extent provided in an Annual Budget approved by Owner, and (iii) all reasonable
and customary placement fees incurred in connection with the hiring of employees
of Agent working on matters relating to the Property (and subject to the prior
approval of Owner). Agent will maintain reasonably detailed records documenting
all reimbursable expenses. Owner shall have the right to audit such
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records, on reasonable prior notice to Agent. Agent shall maintain such records,
at the Property or at such other place as Agent and Owner may determine, for a
period of not less than 4 years from the date of the incurrence of the
respective fees to which they relate. The provisions of Section 6.1 and 6.2 will
survive the expiration or earlier termination of this Agreement.
3. Payment of Compensation. Agent may withdraw the Management Fee
and the reimbursable expenses from the Operating Account as and when the
Management Fee and the reimbursable expenses become due and payable in
accordance with this Agreement.
ARTICLE 7
LEASING RESPONSIBILITIES
1. Leasing Efforts. (a) Agent will use reasonable efforts to lease
space in the Property to desirable tenants upon terms and conditions reasonably
acceptable to Owner. Owner will refer to Agent all offers or inquiries which are
received by Owner with respect to leasing space in the Property.
(b) The services to be performed by Agent as leasing agent shall
include, but shall not be limited to, the following:
(i) Agent shall procure tenants for the Property and shall
be responsible for the leasing of space and the renewal,
extension and expansion of existing leases in the Property
upon such terms and conditions as are specified by Owner; the
conduct of all negotiations related thereto (subject to
Owner's direction); and if requested by Owner arranging for
the preparation of leases and other documents in form
satisfactory to Owner and approved by Owner and its counsel
(which shall be retained by and at the expense of Owner),
including tending to the execution of such leases by tenants
and delivery of such leases; provided, however, that Agent
shall not have any lease executed without securing the prior
written consent of Owner (which consent shall be in Owner's
sole and absolute discretion). Agent shall not have the right
to cancel, amend or accept the surrender of any lease or to
consent to a sublease or assignment of a lease, except with
the written consent of Owner. Agent shall use reasonable
diligence to obtain and submit to Owner credit reports and
other financial statements pertaining to prospective tenants
to the extent available.
(ii) Agent shall acquire and maintain a thorough knowledge of
the leasing market for space similar to that contained in the
Property, prepare a leasing and marketing plan for the
Property (which will include,
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without limitation, analysis of the Property's leasing activity,
market absorption and projected leasing activities) and recommend
pricing and marketing strategies for Owner's consideration.
(c) Agent represents that it is a licensed real estate broker and
all of its employees required to be licensed real estate brokers are so licensed
and will remain so during the term of this Agreement.
2. Advertisement. Agent will list and advertise the Property for rental
by means of periodicals, signs, plans, brochures or other appropriate means in
accordance with the Marketing Plan and Annual Budget. Agent shall not use
Owner's name In any advertising or promotional material without Owner's express
prior written approval in each instance unless provided for in an approved
Marketing Plan. Advertising and promotional materials shall be prepared in full
compliance with Federal, state and municipal laws, ordinances, regulations and
orders. Any reasonable costs of printing leasing brochures and other promotional
material shall be paid by Owner to the extent provided for in the Marketing Plan
and Annual Budget and otherwise to the extent approved in writing by Owner as an
over-budget expense. Agent shall use reasonable efforts to ascertain advertising
and marketing programs being used by competing buildings, and shall utilize such
information in developing the Marketing Plan for the Property.
3. Outside Brokers. Owner acknowledges that Outside Brokers may be
involved in the leasing of space at the Property. Agent will advise Owner of the
involvement of any Outside Brokers in any pending transaction. In the event any
Outside Broker is involved, Agent will use reasonable efforts to have each
Outside Broker execute and deliver to Owner an Outside Broker's Commission
Agreement, the form and substance of which shall be subject to Owner's approval.
Agent will deliver a fully executed counterpart of the Outside Broker's
Commission Agreement to Owner promptly upon the execution thereof.
4. Reporting. Agent will provide Owner with monthly leasing activity
reports in form and substance reasonably acceptable to Owner and Agent which
shall include a description of prospective tenants contacted during the prior
month.
5. Leasing Guidelines. Not later than the date on which the initial
Annual Budget is prepared, Agent will prepare for Owner's review and approval
Leasing Guidelines for the remaining portion of the Fiscal Year in which this
Agreement is executed and delivered. Such Leasing Guidelines will state proposed
lease rates (gross) and concessions (i.e., free rent, tenant fit-out allowance)
to ensure that the Property is competitive in the marketplace. The Leasing
Guidelines, when approved in writing by Owner, shall form the basis on which the
terms of proposed leases of space in the Property shall be negotiated. Agent
will prepare for Owner's review and approval Leasing Guidelines for the ensuing
Fiscal Year, together with and in the
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manner provided in Section 3.1 with respect to the Annual Budget. If Owner and
Agent fall to establish new Leasing Guidelines for any given Fiscal Year, then
the Leasing Guidelines established for the immediately preceding Fiscal Year
will continue in effect until Owner and Agent establish the new Leasing
Guidelines. Agent shall update the Leasing Guidelines from time to time, upon
Owner's request.
6. Authority. Agent will have the authority to negotiate with
prospective tenants on behalf of Owner so long as the terms thereof are
substantially in accordance with the Leasing Guidelines. Agent will have no
authority to enter into any Lease on behalf of Owner without Owner's prior
consent. All Leases permitted under this Agreement may be signed by Agent as
agent for Owner or, at Agent's request, by Owner.
7. Conflicts of Interest. The parties acknowledge that Agent and
certain of its Affiliates are the owners and/or managers of other properties
located in New York City some of which properties may form part of the same
leasing market (the "Leasing Market") (taking into account use, geographical
location, rental rates and building facilities) as the Property. Accordingly,
Agent agrees that, in the event that any then-existing tenant of the Property
enters into negotiations for space (other than at the Property) within the
Leasing Market which is owned or managed by Agent or its Affiliates, or with a
prospective tenant which is considering both the Property and another property
owned or managed by Agent or its Affiliates (and provided that Agent's senior
leasing representative at the Property has actual knowledge that such event has
occurred), Agent shall give Owner notice of Agent's intent to enter into such
negotiations and Owner shall have the right to negotiate directly with such
existing or prospective tenant of the Property.
ARTICLE 8
COMPENSATION FOR LEASING SERVICES
1. Leasing Commission. If and when a Lease is executed and delivered by
a tenant and Owner pursuant to this Agreement (including any Lease entered into
prior to the date of this Agreement where Agent materially participated in its
negotiation), Owner will pay a Leasing Commission to Agent calculated in
accordance with Exhibit E, subject to Section 8.5 below in the case where an
Outside Broker is involved.
2. Limitations.
(a) If a Lease provides that a tenant has the right to terminate
the Lease at any time prior to the commencement of the term thereof, then, no
Leasing Commission will be payable to Agent unless and until the commencement of
the term of the Lease occurs. If a Lease involves a right of the tenant to
cancel or terminate
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after commencement of the term, the Leasing Commission will be based on the
Fixed Rent through the date of such right and if the tenant fails to exercise
such right the remainder of the Leasing Commission shall then be due calculated
as if the remaining term were part of the initial Lease term.
(b) If, for any reason, a Lease is not entered into between Owner
and a prospective tenant of the Property, then no Leasing Commission will be
earned by Agent.
3. Renewals and Extensions. If a tenant exercises an option in the
Lease to renew or extend the initial term of the Lease, then Owner will pay a
Leasing Commission to Agent based on the Fixed Rent (determined in accordance
with Exhibit E) payable during the renewal or extension term. Such Leasing
Commission will be calculated at the rates set forth in Exhibit E at the
percentage levels that would have applied if the renewal or extension period
were part of the initial term of the Lease (e.g., if the initial term was 10
years and the renewal term is 5 years, the applicable rates would be for years
11-15). Notwithstanding the foregoing, if, in such event, a commission is
payable to an Outside Broker upon such renewal or extension, then Owner will pay
a leasing commission to such Outside Broker, and will pay to Agent a Leasing
Commission equal to thirty-seven and one half percent (37.5%) of the Leasing
Commission amount otherwise payable to Agent (were Agent the sole leasing agent)
provided in accordance with the preceding sentence. If (i) an option or right is
negotiated or (ii) a Lease, option or right is renegotiated and (iii) a renewal
or extension is actually effectuated pursuant thereto, then Owner will pay a
Leasing Commission to Agent (or 37.5% thereof if an Outside Broker is involved)
based upon the new term of the Lease (as extended or renewed) calculated in
accordance with Exhibit E as if it were a new Lease, but net of rent, if any,
remaining under the Lease previously in effect with respect to the initial term
in the case of an early renewal or extension amortized over the new term as
extended.
4. Additional Space. If, pursuant to or in connection with an option or
right in the Lease, a tenant leases additional space at the Property, then Owner
will pay a Leasing Commission to Agent (or 37.5% thereof if an Outside Broker is
involved) based on the Fixed Rent payable during the expansion space term. Such
Leasing Commission will be calculated at the rates set forth in Exhibit E at the
percentage levels that would have applied if the additional space were part of
the initial term of the Lease (e.g., if the initial term was 10 years and the
additional space were acquired at the end of year 10 for a term of 5 years, the
applicable rates would be for years 11-15). If an option or right to acquire
additional space is negotiated or renegotiated, and then exercised, then Owner
will pay a Leasing Commission to Agent (or 37.5% thereof if an Outside Broker is
involved) calculated in accordance with Exhibit E as if the additional space
were a new Lease.
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5. Outside Brokers. If an Outside Broker is entitled to a leasing
commission in connection with the leasing of space at the Property, then Owner
will pay a leasing commission to the Outside Broker pursuant to the Outside
Broker's Commission Agreement and will pay to Agent a Leasing Commission equal
to thirty-seven and one half percent (37.5%) of the Leasing Commission amount
otherwise payable to Agent (were Agent the sole leasing agent) set forth in
Exhibit E. Agent will advise Owner of the involvement of any Outside Broker.
6. Timing of Payments.
(a) Owner will pay all Leasing Commissions earned by Agent in
connection with the consummation of a new Lease in two (2) equal installments as
follows: (i) fifty percent (50%) upon execution and delivery of the Lease, and
(ii) fifty percent (50%) upon the earlier of delivery of the demised premises to
the tenant or the date tenant begins paying rent to Owner under the Lease.
(b) Owner will pay all Leasing Commissions earned in connection
with the renewal or extension of a Lease or the leasing of additional space (in
each case pursuant to an option or right in the Lease) in the manner provided in
paragraph (a) above.
(c) The provisions of this Section 8.6 will survive the expiration
or earlier termination of this Agreement.
(d) The provisions of this Section 8.6 are subject to the
provisions of Section 11.5(c).
ARTICLE 9
INSURANCE
1. Owner's Insurance.
(a) Owner will maintain, or at Owner's written request, Agent, on
behalf of Owner, will maintain in full force and effect during the term of this
Agreement "All Risk" property coverage insuring the Property for its replacement
costs and including coverage for expediting expense and rental insurance. The
policy will (i) include a thirty (30) day notice of cancellation to Agent in the
event of non-renewal, non-payment of premium or material change of terms, and
(ii) be maintained with an insurance company licensed to do business in the
State and reasonably acceptable to Owner, Owner hereby agreeing to accept a
Standard & Poor's rating of at least A-8. If Owner shall request Agent in
writing to obtain such policy, Agent
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shall have 45 days to obtain such policy or notify Owner that such policy cannot
be obtained on terms more favorable than the existing policy.
(b) Owner will maintain or, at Owner's written request, Agent, on
behalf of Owner, will maintain in full force and effect during the term of this
Agreement comprehensive general liability insurance (including broad form
contractual, property damage and personal injury coverage) with a maximum
deductible of Twenty- Five Thousand Dollars ($25,000) and a combined single
limit of not less than Fifty Million Dollars ($50,000,000) per occurrence for
bodily injury or death and third-party property damage. The policy will (i) name
Agent as an additional insured party, (ii) include a thirty (30) day notice of
cancellation to Agent in the event of non-renewal, non-payment of premium or
material change of terms, and (iii) be maintained with an insurance company
licensed to do business in the State and reasonably acceptable to Owner, Owner
hereby agreeing to accept a Standard & Poor's rating of at least A-8. Insurance
coverage may be carried under "blanket" policies, but in all events must be the
primary coverage for Owner and Agent for all Claims relating to the Property. If
Owner shall request Agent in writing to obtain such policy, Agent shall have 45
days to obtain such policy or to notify Owner that such policy cannot be
obtained on terms more favorable than the existing policy.
(c) Agent, on behalf of Owner, will provide Owner with
certificates of insurance or other satisfactory documentation evidencing its
compliance with the insurance requirements under this Agreement.
(d) Notwithstanding the foregoing provisions of this Article 9,
all insurance in respect of the Property obtained by Agent on behalf of Owner
shall conform to the requirements of any mortgage encumbering the Property that
has been brought to Agent's attention by Owner, the terms and provisions of
which mortgage shall control in the event of any conflict between the insurance
requirements set forth therein and the foregoing provisions of this Agreement.
2. Agent's Insurance.
(a) Agent will maintain in full force and effect during the term
of this Agreement the following insurance coverage for Property employees:
(i) Comprehensive crime coverage in the minimum amount of
One Million Dollars ($1,000,000).
(ii) Worker's compensation insurance in such form, and in
such amounts, as may be required by applicable Legal
Requirements.
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434110.1
(iii) Non-Occupational disability insurance in such form, and
in such amounts, as may be required by applicable Legal
Requirements.
(b) Agent's insurance policies will (i) include a thirty (30) day
notice of cancellation to Owner in the event of non-renewal, non-payment of
premium or material change of terms, (ii) be maintained with an insurance
company licensed to do business in the State and reasonably acceptable to Owner,
(iii) shall provide for a maximum deductible not In excess of $25,000 and (iv)
otherwise be reasonably acceptable to Owner in all other respects. Agent's
insurance may be carried under "blanket" policies.
(c) Agent will provide Owner with certificates of insurance or
other satisfactory documentation evidencing Agent's compliance with its
insurance requirements under this Agreement.
(d) Owner shall not reimburse Agent for Agent's cost of such
insurance or for any coverages Agent obtains for its own account other than
workmen's compensation and non-occupational disability insurance for personnel
working on the Property.
3. Agent's Duties in Case of Loss.
(a) Agent will promptly notify Owner of any fire or other damage
suffered with respect to the Property.
(b) Agent will promptly notify Owner of any personal injury
suffered or claimed to have been suffered by any Person with respect to the
Property. Agent will also forward to Owner any summons, subpoenas or similar
legal document served upon Agent with respect to any potential liability of
Owner or Agent in connection with the Property.
(c) Agent will promptly investigate and make a full written report
of all damages or accidents relating to the Property and will submit such report
to and otherwise cooperate with the insurance company representing Owner or
Owner's mortgagee in connection therewith. Agent shall deliver a copy of any and
all such reports to Owner.
(d) Agent may settle Claims on account of damage or injury to the
extent that the settlement is fully covered by insurance and does not expose
Owner to criminal or civil penalties, including the execution of proofs of loss,
the adjustment of losses, signing of receipts, and the collection of money,
without joinder of Owner if the aggregate amount of such claim or series of
claims equals or is less than One Hundred Thousand Dollars ($100,000). If the
amount involved exceeds One Hundred
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Thousand Dollars ($100,000), settlement of such claim shall be made only with
Owner's knowledge and consent. The foregoing authority of Agent may be revoked
by Owner to the extent inconsistent with any mortgage encumbering the Property.
4. Waiver of Rights of Subrogation. All insurance policies required to
be maintained under this Agreement will include a clause or endorsement
providing that the insurer waives all rights of subrogation against Owner and
Agent with respect to losses payable thereunder if and to the extent such clause
or endorsement is available and can be obtained at a reasonable cost. Each of
Owner and Agent waives all Claims against the other (and their Affiliates and
respective partners, shareholders, directors, officers, employees and agents)
for any loss or damage to the other's property to the extent of insurance
coverage included in a standard "all-risk" form of property insurance. Agent
shall not intentionally take any action (such as admission of liability), except
as required by law, which reasonably would bar Owner from obtaining any
protection afforded by any policy Owner may hold or which reasonably would
prejudice Owner in its defense to a claim based on such loss, damage or injury.
ARTICLE 10
INDEMNIFICATION, EXCULPATION
1. Owner's lndemnity. OWNER WILL DEFEND, INDEMNIFY AND HOLD HARMLESS
AGENT, ITS AFFILIATES AND THEIR RESPECTIVE PARTNERS, SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS ARISING FROM OR IN
ANY WAY CONNECTED WITH (A) THE PERFORMANCE OF AGENT'S OBLIGATIONS UNDER AND IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, (B) ANY OTHER ACTS PERFORMED BY
AGENT AT THE DIRECTION OF OWNER, (C) THE BREACH OF THIS AGREEMENT BY OWNER, AND
(D) CLAIMS BROUGHT AGAINST AGENT FOR DISCRIMINATION ON THE GROUNDS OF RACE,
COLOR, CREED, RELIGION, SEX, NATIONAL ORIGIN OR ANY OTHER BASIS ("DISCRIMINATION
CLAIMS"), (E) OWNER'S FAILURE (OTHER THAN BY REASON OF AGENT'S DEFAULT UNDER
THIS AGREEMENT) OR REFUSAL TO COMPLY WITH OR ABIDE BY ANY LEGAL REQUIREMENTS.
IF, FOLLOWING A FINAL ADJUDICATION ON THE MERITS BY A COURT OF COMPETENT
JURISDICTION, IT IS DETERMINED ("FINAL DETERMINATION") THAT ACTS OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT WERE PERMITTED OR SUFFERED BY AGENT, ITS
PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS, OR (WITH
RESPECT TO ANY DISCRIMINATION CLAIM) AGENT IS THE LOSING PARTY, THEN AGENT WILL
BE RESPONSIBLE FOR THE AMOUNT OF THE CLAIM TO THE EXTENT THE CLAIM IS NOT
OTHERWISE COVERED BY INSURANCE REQUIRED TO BE MAINTAINED BY OWNER OR AGENT
("AGENT INDEMNIFIED ACTS"). AGENT FURTHER AGREES TO REIMBURSE OWNER FOR COURT
COSTS AND OTHER REASONABLE EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES,
INCURRED
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BY OWNER IN DEFENDING ANY ACTION BROUGHT AGAINST OWNER FOR INJURY OR DAMAGE
CLAIMED TO HAVE BEEN SUFFERED AS A RESULT OF AGENT'S WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS, BUT ONLY IF THERE IS A FINAL
DETERMINATION OF SUCH WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR THERE IS A
FINAL DETERMINATION IN A DISCRIMINATION CLAIM WHERE AGENT IS THE LOSING PARTY.
2. Agent's Indemnity. AGENT WILL DEFEND, INDEMNIFY AND HOLD HARMLESS
OWNER, ITS AFFILIATES AND THEIR RESPECTIVE PARTNERS, SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS ARISING FROM OR IN
ANY WAY CONNECTED WITH (A) AGENT INDEMNIFIED ACTS, AND (B) THE BREACH BY AGENT
OF ITS OBLIGATION HEREIN TO COMPLY WITH THE LEGAL REQUIREMENTS APPLICABLE TO
PROPERTY EMPLOYEES.
3. Waiver of Claims; Environmental Indemnity. AGENT SHALL NOT BE LIABLE
OR ACCOUNTABLE, IN DAMAGES OR OTHERWISE, TO OWNER FOR ANY ACT PERFORMED OR
FAILURE TO ACT BY IT IN GOOD FAITH AND WHICH DOES NOT CONSTITUTE FRAUD, BAD
FAITH, GROSS NEGLIGENCE OR A BREACH OF THIS AGREEMENT BY AGENT. OWNER WILL ALSO
DEFEND, INDEMNIFY AND HOLD HARMLESS AGENT, ITS AFFILIATES AND EACH OF THEIR
RESPECTIVE PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
FROM AND AGAINST ALL CLAIMS ARISING FROM OR IN ANY WAY CONNECTED WITH THE
PRESENCE, RELEASE OR DISCHARGE OF ANY HAZARDOUS MATERIALS, HAZARDOUS SUBSTANCES,
HAZARDOUS WASTES OR SIMILAR SUBSTANCES AFFECTING ALL OR ANY PORTION OF THE
PROPERTY OR AFFECTING ANY LANDS, SURFACE WATERS, GROUND WATERS OR AIR SPACE
ADJACENT TO OR IN THE VICINITY OF THE PROPERTY (WITHOUT REGARD TO THE SOURCE OR
ORIGIN OF THE PRESENCE, RELEASE OR DISCHARGE OR THE OWNERSHIP OF THE PROPERTY AT
THE TIME OF THE PRESENCE, RELEASE OR DISCHARGE), UNLESS (1) SUCH CLAIM ARISES
FROM THE GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF AGENT, ITS AFFILIATES OR ANY
OTHER RESPECTIVE PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENT
AND (2) THERE HAS BEEN A FINAL DETERMINATION OF SUCH GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
4. Survival. The provisions of Section 10.1, Section 10.2 and Section
10.3 will survive the expiration or earlier termination of this Agreement.
5. Exculpation.
(a) No direct or indirect partner or shareholder in or of Owner
(and no officer, director, employee or agent of such partner or shareholder)
will be personally liable for the performance of Owner's obligations under this
Agreement. The liability of Owner for Owner's obligations under this Agreement
will be limited to Owner's
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434110.1
interest in the Property and other assets and the proceeds thereof. A negative
capital account of any partner will not be considered to be a partnership asset.
Nothing in this Section 10.5(a) will affect the rights of Agent to seek
appropriate relief against any Person to the extent that such Person
misappropriates funds of Owner or commits fraud against Agent.
(b) No direct or indirect partner or shareholder in or of Agent
(and no officer, director, employee or agent of such partner or shareholder)
will be personally liable for the performance of Agent's obligations under this
Agreement. The liability of Agent for Agent's obligations under this Agreement
will be limited to its partnership assets. A negative capital account of any
partner will not be considered to be a partnership asset. Nothing in this
Section 10.5(b) will affect the rights of Owner to seek appropriate relief
against any Person to the extent that such Person misappropriates funds of Owner
or commits fraud against Owner.
ARTICLE 11
TERM, EXPIRATION, TERMINATION
1. Term. This Agreement will be effective as of the date set forth in
the Preface of this Agreement and will continue in full force and effect until
the second (2nd) anniversary of such date. At least 90 days prior to the
expiration of the initial term of this Agreement, Owner and Agent shall discuss
in good faith the renewal of the term of this Agreement beyond the initial term,
provided that neither party shall be under any obligation to agree to any such
renewal. If upon the expiration of the term of this Agreement Agent is still
serving as managing and leasing agent for the Property and Owner has not
notified Agent in writing that Agent shall no longer serve as managing and
leasing agent for the Property (such notice to be provided at least 30 days
prior to the expiration of such term), then this Agreement will automatically
renew for additional consecutive 90 day terms on the same terms and conditions
set forth in this Agreement until such time as Owner shall notify Agent in
writing that Agent shall no longer serve as managing and leasing Agent for the
Property (such notice to be provided at least 30 days prior to the expiration of
such term). This Agreement may also be terminated by Owner on sixty (60) days'
notice if the Property is either (a) sold by Owner or (b) refinanced by Owner
pursuant to a securitized financing of the Property, provided that termination
of this Agreement as a result of such financing shall only be effective if Agent
is not approved by the rating agency participating in such financing. This
Agreement is terminable only upon the conditions and in the manner provided for
in this Article 11.
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434110.1
2. Owner's Rights of Termination.
(a) If Agent breaches any of the payment obligations or other
material terms of this Agreement, Owner will give Agent notice of such breach.
If Agent fails to cure the breach within 10 business days, in the case of a
monetary default, or, in the case of a non-monetary default, 30 days, after
receiving such notice (provided that if any such non-monetary breach cannot by
the exercise of diligent effort be cured within such 30 day period, the same
shall be extended as long as reasonably necessary provided Agent is diligently
prosecuting a cure but in no event longer than 120 days), Owner may terminate
this Agreement upon notice to Agent.
(b) If Agent or any principal of Agent intentionally
misappropriates funds of Owner or commits fraud against Owner, then Owner may
terminate this Agreement immediately upon notice to Agent.
(c) If a petition in bankruptcy is filed by or against Agent and
is not dismissed within 60 days, or a trustee, receiver or other custodian is
appointed for a substantial part of Agent's assets and is not vacated within 60
days, or Agent makes an assignment for the benefit of its creditors, then Owner
may terminate this Agreement upon notice to Agent.
(d) If a controlling interest in Agent (i.e., any interest in
Agent which includes the exclusive right to direct policy and make managerial
decisions) shall be transferred, sold or otherwise conveyed to a party other
than an Affiliate of Agent, then Owner may terminate this Agreement upon 30
days' notice to Agent; provided that Owner shall not be permitted to so
terminate if, following such transfer of a controlling interest in Agent, one or
more of the current senior management personnel of Agent shall continue to
control the policy and managerial decisions of Agent.
(e) If Nyprop, L.L.C. shall default on its agreement to purchase
shares in Metropolis Realty Trust, Inc. ("MRT") pursuant to the Subscription
Agreement between MRT and Nyprop, L.L.C., then Owner may terminate this
Agreement upon 30 days' notice to Agent.
Notwithstanding any such notice of termination by Owner (under this Section
11.2) or Agent (under Section 11.3), Agent shall be and remain liable for the
performance of its duties and other obligations hereunder through the date of
termination and shall maintain all records, documents, property and files until
the termination date.
3. Agent's Rights of Termination.
(a) If Owner materially breaches any of the payment obligations or
other material terms of this Agreement, Agent will give Owner notice of such
breach. If Owner fails to cure the material breach within 30 days after
receiving such notice
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434110.1
(provided that if any such non-monetary breach cannot by the exercise of
diligent effort be cured within such 30 day period, the same shall be extended
as long as reasonably necessary provided Owner's is diligently prosecuting a
cure but in no event longer than 120 days), Agent may terminate this Agreement
upon notice to Owner.
(b) If Owner fails to provide sufficient funds on a consistent
basis to operate and maintain the Property in a first class manner in accordance
with this Agreement, then Agent may terminate this Agreement upon sixty (60)
days' notice to Owner.
(c) If a petition in bankruptcy is filed by or against Owner and
is not dismissed within 60 days, or a trustee, receiver or other custodian Is
appointed for a substantial part of Owner's assets and is not vacated within 60
days, or Owner makes an assignment for the benefit of its creditors, then Agent
may terminate this Agreement upon notice to Owner.
4. Obligations Upon Expiration or Termination.
(a) Upon the expiration or earlier termination of this Agreement,
each party will promptly pay to the other party all amounts due and payable to
that party under this Agreement. Within forty-five (45) days after any such
termination, Agent shall deliver to Owner the financial statements required by
Section 3.8 for any periods not covered by such reports at the time of
termination and a profit and loss statement for the fiscal year or portion
thereof ending on the date of termination. Within thirty (30) days of the
delivery of the final profit and loss statement and balance sheet, Owner shall
approve or dispute the contents thereof and, provided that Agent has performed
all of its obligations under this Section 11.4, shall make final payment of any
unpaid fees owed to Agent under the terms of this Agreement, subject to offsets
and defenses available to Owner and to resolution of any dispute to the extent
that the amount of such fees would be affected thereby. Nothing contained herein
is intended to nor shall it excuse the timely payment of fees due Agent under
the terms of this Agreement. Owner and Agent agree to act in good faith and use
reasonable efforts to resolve any dispute promptly so a final payment of fees
can be made. Upon receipt of such payments neither party will have any further
rights or obligations under this Agreement, except for those rights and
obligations which expressly survive the expiration or earlier termination of
this Agreement.
(b) Upon the expiration or earlier termination of this Agreement,
Agent will deliver to Owner (i) a final accounting reflecting the balance of
income and expenses for the Property as of the date of expiration or
termination, (ii) any balance of funds (including security deposits and advance
rent) belonging to Owner which are then being held by Agent with respect to the
Property, and (iii) all files, books, records, documents and other instruments
relating to the ownership, operation and maintenance of the Property to the
extent required to be maintained by Agent
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434110.1
pursuant to this Agreement and not previously delivered to Owner. In connection
with the termination of this Agreement, Agent shall assign to Owner, to the
extent same are assignable, all contracts and other agreements, if any, executed
in the name of Agent, relating to the operation and maintenance of the Property.
(c) Owner and Agent will use reasonable efforts to ensure an
orderly transition of the operation and management of the Property and will
perform their respective obligations under this Agreement until the expiration
or effective date of the termination of this Agreement.
5. Leasing Commissions. Upon the expiration or earlier termination of
this Agreement, Owner will pay a Leasing Commission to Agent in the following
instances:
(a) If (i) Agent negotiates and delivers a proposed Lease to Owner
for consideration prior to the expiration or termination of this Agreement, and
(ii) Owner and the tenant execute and deliver a Lease within six months after
such expiration or termination.
(b) If (i) a Lease is not presented to Owner prior to the
expiration or termination of this Agreement, but Agent gives notice to Owner,
within 10 days after such expiration or termination, of negotiations with a
prospective tenant for specified premises within the ninety (90) day period
immediately preceding the expiration or termination of this Agreement, and (ii)
Owner and the prospective tenant execute a Lease for the specified premises
within one hundred and eighty (180) days after the expiration or earlier
termination of this Agreement.
(c) Any Leasing Commission, or portion thereof, that, pursuant to
Section 8.6, is otherwise due and payable upon the date tenant begins paying
rent to Owner under the Lease shall instead be due and payable upon the
expiration date or earlier termination of this Agreement.
ARTICLE 12
GENERAL PROVISIONS
1. Agent's Office. Owner will provide to, and maintain for, at no cost
to Agent, (a) sufficient Agent office space and other space at the Property
reasonably acceptable to Owner and Agent for the conduct of Agent's leasing and
management services hereunder, and (b) all office machines, furniture,
equipment, computers, cabling and supplies of all types and kinds which are
reasonably required by Agent in order properly to perform its duties hereunder.
Such space will be used solely by employees performing responsibilities under
this Agreement. Owner will bear all reasonable costs of operating the space
provided to Agent hereunder.
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434110.1
2. No Discrimination. Neither Owner nor Agent will discriminate against
any person on the grounds of race, color, creed, religion, sex, national origin
or any other basis prohibited by applicable Legal Requirements with respect to
any activity affecting the Property.
3. Availability of Funds. Any obligation of Agent hereunder with
respect to the Property requiring the expenditure of funds shall be subject to
the condition that sufficient funds are then available in the Operating Account
for the performance. of such obligation.
4. ERISA. Owner represents and warrants to Agent that no portion of the
Property constitutes plan assets of any employee benefit plan under the Employee
Retirement Income Security Act of 1974 and does not constitute a tax favored
plan under the Internal Revenue Code. Owner will defend, indemnify and hold
harmless Agent, its Affiliates and their respective partners, shareholders,
directors, officers, employees and agents from and against all Claims arising
from or in any way connected with the breach of this representation or warranty
by Owner.
5. Notices. All notices, approvals, consents, elections or other
communications under this Agreement must be in writing and may be (a) delivered
personally, (b) delivered by a nationally recognized overnight courier, (c)
mailed by registered or certified mail, postage prepaid, with return receipt
requested, or (d) sent by telecopier (with written confirmation of the receipt
of the telecopy) with the original to follow in the manner specified in clauses
(a)-(c) above, and addressed to the party at its address set forth below:
if to Owner, to:
1290 Partners, L.P.
c/o ▇▇▇▇▇▇ Capital Group, L.P. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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if to Agent, to:
Tishman Speyer Properties, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director of Property Management
with a copy to:
Tishman Speyer Properties, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or at such other address, as from time to time, supplied by a party to the
others by like notice. Notices will be deemed to be received, if personally
delivered, upon delivery, if sent by overnight courier, on the first (1st)
business day after being sent, if sent by mail, on the date set forth on the
return receipt, if sent by telecopier, on the date sent if confirmation of
receipt shows delivery on or before 5:00 P.M., or on the next business day if
confirmation of receipt shows delivery after 5:00 P.M. Each party shall be
entitled to rely on all communications which purport to be on behalf of the
other party and purport to be signed by an authorized party.
6. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the respective successors and permitted assigns of Owner
and Agent, but neither Owner nor Agent will have the right to assign its rights
or obligations under this Agreement without the prior written consent of the
other party and any attempted assignment, in the absence of such consent, will
be void and of no effect; however, either party may, upon fifteen (15) days'
prior notice to the other party, assign this Agreement to an Affiliate so long
as the Affiliate executes and delivers to the other party an assumption
agreement in form and substance reasonably satisfactory to the other party and
provided that the assigning party shall not be released by or upon delivery of
such executed assumption agreement.
7. Attorneys' Fees. If any action or proceeding is instituted by one
party against the other party with respect to this Agreement, the prevailing
party in the action or proceeding will be entitled to receive from the
non-prevailing party the reasonable attorneys' fees and expenses incurred by the
prevailing party.
8. Amendment. No purported amendment to or waiver of any term of this
Agreement will be binding upon any party, or have any other force or effect in
any respect, unless the same is in writing and signed by the party to be
charged.
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9. State Law. This Agreement will be interpreted and enforced in
accordance with the internal laws of the State without giving effect to the
principles of conflicts of laws.
10. Entire Agreement. All prior understandings and agreements between
the parties with respect to the subject matter of this Agreement are merged in
this Agreement. Neither party is relying upon any statement, covenant or
representation made by any other party which is not embodied in this Agreement.
11. No Waiver. No failure or delay of either party in the exercise of
any right under this Agreement will be deemed to be a waiver of such right. No
waiver by either party of any condition under this Agreement for its benefit or
any breach under this Agreement will constitute a waiver of any other or further
right or any other subsequent breach.
12. Further Assurances. Each party will, from time to time, execute,
acknowledge and deliver such further instruments, and perform such additional
acts, and otherwise cooperate with the other party and be available to consult
with the other party as the other party may reasonably request in order to (a)
effectuate the intent of this Agreement and (b) facilitate Agent's expeditious
performance of its obligations hereunder. Without limiting the foregoing, as
promptly as practicable after execution hereof, Owner shall make available to
Agent (to the extent Owner is in possession) (a) plans and specifications for
the buildings and other structures and improvements at the Property so that
Agent may be advised with respect to, and have knowledge of, the layout,
construction, location, character, plan and operation of the elevators,
escalators, lighting, heating, air conditioning, plumbing, electrical and other
mechanical equipment at the Property; (b) copies of all guarantees given by
contractors or subcontractors in connection with the construction and alteration
of the Property; (c) copies of all Leases of space at the Property; (d) copies
of all mortgages and ground leases affecting the Property; and (e) copies of all
contracts relating to the maintenance and operation of the Property.
13. Effectiveness of Agreement. This Agreement will not become effective
unless and until it is executed and delivered by both Owner and Agent.
14. No Third-Party Beneficiaries. This Agreement is entered into solely
for the benefit of Owner and Agent. No other Person is intended to be a
third-party beneficiary of this Agreement.
15. Divisibility. If any article, section or exhibit of this Agreement
is deemed illegal or unlawful, the same will be struck from this Agreement and
all other articles, sections and exhibits will remain valid and in full force
and effect.
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434110.1
16. Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed to be an original and all of which will together
constitute one instrument.
17. Jury Trial Waiver. OWNER AND AGENT BOTH WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BOUGHT BY EITHER PARTY AGAINST
THE OTHER WITH RESPECT TO THIS AGREEMENT.
18. Brokers. Each party represents and warrants to the other party that
the party has not retained any broker, finder or other commission or fee agent,
and no such person has acted on its behalf in connection with the execution and
delivery of this Agreement.
19. Confidentiality; Publicity. The parties agree that no party hereto
shall issue any press release or otherwise publicize or disclose the terms of
this Agreement without the prior written approval of the other party, which
approval shall not be unreasonably withheld. The foregoing shall not apply to
disclosures made by a party in the course of normal reporting practices to its
shareholders, and partners, or to lenders, attorneys, accountants and other
consultants or as required by law. Agent will use reasonable efforts to hold
confidential the terms and conditions of the leases and other agreements
relating to the Property, together with all data obtained by Agent in connection
with the Property.
20. Remedies Cumulative. All rights or remedies in this Agreement
specified and all other rights or remedies that the parties may have at law, in
equity or otherwise upon breach of any term or condition in this Agreement
contained upon the part of the other party to be performed, shall be distinct,
separate and cumulative rights or remedies and no one of them, whether exercised
by the non-defaulting party or not, shall be deemed to be in exclusion of any
other right or remedy of such non-defaulting party. No term or condition of this
Agreement shall be deemed to have been waived by either party unless such waiver
be in writing and signed by such party.
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434110.1
21. Asset Manager. Wherever any consent or approval by Owner shall be
required by the terms and provisions of this Agreement, the same may be given by
any asset manager of the Property engaged by Owner and which has been
specifically identified in a written notice by Owner to Agent. Copies of any
required notices or other communications hereunder (including, without
limitation, copies of invoices, leases and financial statements and other
reports) shall be delivered to such asset manager at the times and in the manner
herein specified for such notices and communications to be given to Owner.
THIS AGREEMENT has been executed and delivered by Owner and Agent as of
the date first set forth above.
OWNER:
1290 PARTNERS, L.P.
By: 1290 GP Corp., general partner
By:
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:President
AGENT:
TISHMAN SPEYER PROPERTIES, L.P.
By: Tishman Speyer Properties, Inc.,
General Partner
By:
Name:
Title:
21. Asset Manager. Wherever any consent or approval by Owner shall be
required by the terms and provisions of this Agreement, the same may be given by
any asset manager of the Property engaged by Owner and which has been
specifically identified in a written notice by Owner to Agent. Copies of any
required notices or other communications hereunder (including, without
limitation, copies of invoices, leases and financial statements and other
reports) shall be delivered to such asset manager at the times and in the manner
herein specified for such notices and communications to be given to Owner.
-38-
434110.1
THIS AGREEMENT has been executed and delivered by Owner and Agent as of
the date first set forth above.
OWNER:
1290 PARTNERS, L.P.
By: 1290 GP Corp., general partner
By:
Name:
Title:
AGENT:
TISHMAN SPEYER PROPERTIES, L.P.
By: Tishman Speyer Properties, Inc.,
General Partner
By:
Name:
Title:
-39-
434110.1
EXHIBIT "A"
INTERIM BUDGET
-40-
434110.1
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
BUDGET
FOR THE PERIOD OCTOBER THROUGH DECEMBER 1996
('000's Omitted)
Oct-96 Nov-96 Dec-96 Total
------ ------ ------ -----
REVENUE:
Base Rent 3,940 3,962 3,962 11,864
Electric 284 284 284 852
Escalations 187 187 1,102 1,476
Sales & Sundry 60 60 60 180
Parking 3 3 3 9
Other Income 75 75 75 225
Contingency (44) (44) (53) (141)
-------------- -------------- -------------- --------------
TOTAL REVENUE 4,505 4,527 5,433 14,465
------------- ------------- ------------- -------------
EXPENSES:
Payroll 263 263 263 788
Cleaning 214 222 234 670
Repairs & Maintenance 184 213 212 609
Rubbish/Waste 23 23 23 69
Steam 43 67 107 217
Electricity 682 432 326 1,441
Water 18 17 10 45
Miscellaneous 20 20 21 61
Professional Fees 33 33 33 99
Insurance (Annual Premium Payment (1) 322 0 0 322
Property Management Fee 68 68 81 217
Real Estate Taxes 0 0 0 0
------------- ------------- ------------- -------------
TOTAL EXPENSES 1,870 1,358 1,311 4,538
------------- ------------- ------------- -------------
NET OPERATING INCOME 2,635 3,169 4,122 9,927
------------- ------------- ------------- -------------
OTHER EXPENDITURES:
Commissions 0 0 0 0
Capital Projects (2) 588 1,683 4,017 6,288
Other (3) 125 0 0 125
------------- ------------- ------------- -------------
TOTAL OTHER EXPENDITURES 713 1,683 4,017 6,413
N.C.F. BEFORE DEBT SERVICE 1,922 1,486 106 3,514
============= ============= ============= =============
NOTES:
(1) Insurance Estimates: See Summary Schedule for Details
---------------------------------------------------------------------------------------------------
(2) Summary of Capital Projects:
Oct. Nov. Dec. Total
---- ---- ---- -----
Equitable (Punchlist & Blinds) 160 20 40 220
Lobby 378 341 300 1,019
Warner (LL Wk - Window Blinds & Film) 0 15 75 90
Warner (Tenant Allowance) 0 1,122 3,367 4,489
Security Cameras 50 50 50 150
Bank of New York (Removal & reconnect A/C 0 0 50 50
Elevator Upgrade (To obtain full-service contract) 0 135 135 270
-------- ---------- ---------- --------
Total 588 1,683 4,017 6,288
======== ========== ========== ========
---------------------------------------------------------------------------------------------------
(3) Other. Includes the one-time cost of the build-out of the management office.
-41-
434110.1
EXHIBIT "B"
LIST OF CURRENT AND PROPOSED STAFFING
[Exhibit B has been provided in a separate written instrument delivered by Agent
to Owner]
-42-
434110.1
EXHIBIT "C"
TERMS OF EMPLOYMENT OF NON-UNION EMPLOYEES
-43-
434110.1
EXHIBIT C
[EMPLOYERS/LABOR AGREEMENTS]
Terms of Employment of Non- Union Employees
1. Vacation. An employee is entitled to ten days vacation each year, fifteen
days after five years and 20 days after 10 years.
2. Holidays. The office is closed for nine major holidays and each employee
is also entitled to three floating holidays.
3. Personal and Sick Days. Each employee is entitled to three personal days
and ten paid sick days.
4. Termination/Severance Pay. In case of a termination for reasons other than
malfeasance, an employee is to receive termination pay equal to one week's
salary per full six months of employment up to five years. Above five
years, severance pay is based on a scheduled number of weeks which can be
increased at the discretion of the employer.
The current accrued vacation and severance pay for non-union employees of
237 Park and 1290 Avenue of the Americas is set forth on the attached
schedule.
The following information is as of the date of commencement of the
bankruptcy case for the Debtors and will be updated by Grantor at the
Effective Date:
-44-
434110.1
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
As of 10/4/96
--------------------------------------------------------------------------------------------------------------------------------
NAME POSITION WKLY. RATE START DATE TOT. VAC. VAC. DUE VAC. AMT. SEV. TERMIN.
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
MANAGEMENT NON UNION
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇, J. ASST. MANAGER 1154.56 10/3/83 20 61 14065.63 26554.88 0.00
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
TOTAL 1154.56 14065.63 26554.88 0.00
--------------------------------------------------------------------------------------------------------------------------------
ELEVATOR R.A.B. CRAFT AGREEMENT
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, J. MECHANIC 758.40 6/6/92 10 5 758.40 0.00 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇, M. MECHANIC 758.40 11/5/90 15 0 0.00 0.00 758.40
--------------------------------------------------------------------------------------------------------------------------------
ROCHE, J. MECHANIC 979.20 7/9/84 15 5 979.20 0.00 1958.40
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, D. MECHANIC 758.40 11/17/82 15 10 1516.80 0.00 2275.20
--------------------------------------------------------------------------------------------------------------------------------
LOONEY, M. MECHANIC 902.00 5/16/88 15 5 902.00 0.00 902.00
--------------------------------------------------------------------------------------------------------------------------------
TOTAL 4156.40 4156.40 0.00 5894.00
--------------------------------------------------------------------------------------------------------------------------------
ENGINEERS UNION LOCAL 94
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
ALIPPI, R. ENGINEER 826.40 8/69 25 15 2479.20 10743.20 8264.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, W. ENGINEER 817.60 1/3078 20 0 0.00 10628.80 5723.20
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇, J. ENGINEER 768.06 5/18/78 20 8 1230.53 9998.04 5383.56
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇, W. CHIEF 1066.12 6/6/83 15 5 1058.12 13729.56 3168.36
--------------------------------------------------------------------------------------------------------------------------------
KIERAN, K. ASST. CHIEF 936.48 6/4/84 15 0 0.00 12174.24 2809.44
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, M. ENGINEER 817.60 6/17/85 15 7 1144.54 10628.80 1635.20
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇, J. ENGINEER 638.40 2/23/87 15 0 0.00 8273.20 636.40
--------------------------------------------------------------------------------------------------------------------------------
COURT, C. ENGINEER 817.60 2/8/87 15 5 817.60 10628.80 817.60
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, J. ENGINEER 817.60 7/14/88 15 10 1635.20 10628.80 817.60
--------------------------------------------------------------------------------------------------------------------------------
O'BRIEN, J. ENGINEER 769.06 2/20/93 10 7 1076.71 9996.04 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇'▇▇▇▇▇▇▇▇, K. HELPER 636.40 6/1/93 10 5 636.40 8273.20 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇, S. HELPER 636.40 6/9/94 10 0 0.00 8273.20 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇, R. HELPER 636.40 7/15/94 10 0 0.00 8273.20 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇, R. HELPER 516.40 10/2/95 3 0 0.00 8713.20 0.00
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇, N. HELPER 516.40 7/10/96 0 0 0.00 8713.20 0.00
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
TOTAL 11216.92 10078.10 130773.48 29255.36
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
BLDG. TOT. 16527.88 28300.13 157328.36 35149.36
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
GRAND TOT 237305.73
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
NOTE: Union employees weekly rate is based on their hourly rate times 40 hours.
* Ed ?? is a joint employee of several properties.
--------------------------------------------------------------------------------------------------------------------------------
-45-
434110.1
EXHIBIT "D"
LIST OF ON-SITE DIRECT MANAGEMENT EMPLOYEES
[Other information in Exhibit D has been provided in a separate written
instrument delivered by Agent to Owner]
-46-
434110.1
Exhibit "D" As of 10/4/96
Tishman Speyer Properties
Management Assignments
Each position is 100% allocable to its respective building
1290 Avenue of the Americas
Name Position
----------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Property Manager
▇▇▇ ▇▇▇▇▇ Asst. Prop. Manager
▇▇▇▇▇▇▇ ▇▇▇▇▇ Office Manager
TBA Secretary
Total
Staffing subject to change.
-47-
434110.1
EXHIBIT "E"
LEASING COMMISSIONS
Leasing Commissions will be computed by multiplying Fixed Rent by the following
percentages, as appropriate, and adding together the results:
1. For the 1st year of any Lease term 5%
2. For the 2nd year 4%
3. For the 3rd year through and including the 5th year 3 1/2%
4. For the 6th year through and including the 10th year 2 1/2%
5. For the 21st year and each succeeding year thereafter 2%
6. For the 21st year and each succeeding year thereafter 1%
-48-
434110.1
MANAGEMENT AND LEASING AGREEMENT
between
1290 PARTNERS, L.P.
OWNER
and
TISHMAN SPEYER PROPERTIES, L.P.,
AGENT
PROPERTY:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
-49-
434110.1
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS, INTERPRETATION.................................. 1
1. Definitions.................................................. 1
2. Interpretation............................................... 5
ARTICLE 2 APPOINTMENT, OTHER ACTIVITIES................................ 6
1. Appointment.................................................. 6
2. No Liability for Past Acts or Omissions...................... 6
3. Other Activities............................................. 6
ARTICLE 3 MANAGEMENT RESPONSIBILITIES.................................. 6
1. Submission of Budgets........................................ 6
2. Adherence to Budgets......................................... 7
3. Emergency Expenses; Non-Discretionary Expenses............... 8
4. Operation, Maintenance and Repairs; Payments................. 8
5. Enforcement of Leases........................................ 9
6. Compliance with Legal Requirements and Contracts............. 9
7. Books and Records............................................ 10
9. Annual Audit; Tax Returns.................................... 12
10. Employees.................................................... 13
11. Tax Assessments and Condemnation............................. 15
12. Improvements................................................. 15
13. Consent to Tenant Alterations to Property.................... 15
14. Tenant Complaints and Requests............................... 16
15. Advertising; Public Relations................................ 16
16. General Duties............................................... 16
ARTICLE 4 BANK ACCOUNTS, DISBURSEMENTS................................. 17
1. Operating Account............................................ 17
3. Shortfalls; Advances......................................... 18
4. Payments to Owner............................................ 18
ARTICLE 5 MANAGEMENT AUTHORITY, CONTRACTS.............................. 18
1. General Authority............................................ 18
2. Execution of Contracts....................................... 19
3. Use of Counsel and Other Professionals....................... 19
4. Limitation of Authority...................................... 19
5. Value of Goods, Services and Supplies........................ 19
-i-
ARTICLE 6 COMPENSATION FOR MANAGEMENT SERVICES......................... 20
1. Management Fee............................................... 20
ARTICLE 7 LEASING RESPONSIBILITIES..................................... 21
1. Leasing Efforts.............................................. 21
2. Advertisement................................................ 22
3. Outside Brokers.............................................. 22
4. Reporting.................................................... 22
5. Leasing Guidelines........................................... 22
6. Authority.................................................... 23
7. Conflicts of Interest........................................ 23
ARTICLE 8 COMPENSATION FOR LEASING SERVICES............................ 23
1. Leasing Commission........................................... 23
2. Limitations.................................................. 23
3. Renewals and Extensions...................................... 24
4. Additional Space............................................. 24
5. Outside Brokers.............................................. 25
6. Timing of Payments........................................... 25
ARTICLE 9 INSURANCE.................................................... 25
1. Owner's Insurance............................................ 25
2. Agent's Insurance............................................ 26
3. Agent's Duties in Case of Loss............................... 27
4. Waiver of Rights of Subrogation.............................. 28
ARTICLE 10 INDEMNIFICATION, EXCULPATION............................. 28
1. Owner's lndemnity............................................ 28
2. Agent's Indemnity............................................ 29
3. Waiver of Claims; Environmental Indemnity.................... 29
4. Survival..................................................... 29
5. Exculpation.................................................. 29
ARTICLE 11 TERM, EXPIRATION, TERMINATION............................ 30
1. Term......................................................... 30
2. Owner's Rights of Termination................................ 31
3. Agent's Rights of Termination................................ 31
4. Obligations Upon Expiration or Termination................... 32
5. Leasing Commissions.......................................... 33
ARTICLE 12 GENERAL PROVISIONS....................................... 33
1. Agent's Office............................................... 33
2. No Discrimination............................................ 34
3. Availability of Funds........................................ 34
-ii-
4. ERISA........................................................ 34
5. Notices...................................................... 34
6. Successors and Assigns....................................... 35
7. Attorneys' Fees.............................................. 35
8. Amendment.................................................... 35
9. State Law.................................................... 36
10. Entire Agreement............................................. 36
12. Further Assurances........................................... 36
13. Effectiveness of Agreement................................... 36
14. No Third-Party Beneficiaries................................. 36
15. Divisibility................................................. 36
16. Counterparts................................................. 37
17. Jury Trial Waiver............................................ 37
18. Brokers...................................................... 37
19. Confidentiality; Publicity................................... 37
20. Remedies Cumulative.......................................... 37
21. Asset Manager................................................ 38
21. Asset Manager................................................ 38
-iii-
