Exhibit 3.3PROPERTY MANAGEMENT AND LEASING AGREEMENTbetweenHINES REIT PROPERTIES, L.P.andHINES INTERESTS LIMITED PARTNERSHIP                                        , 20                    
 

 
**TABLE OF CONTENTS**        Page ARTICLE 1 APPOINTMENT  2      Section 1.1 Appointment  2      ARTICLE 2 TERM  2      Section 2.1 Term  2      ARTICLE 3 RELATIONSHIP  2      Section 3.1 Relationship  2      ARTICLE 4 ASSIGNABILITY  3      Section 4.1 Assignability by Manager  3      Section 4.2 Assignment by Owner  4      ARTICLE 5 SERVICES OF MANAGER  4      Section 5.1 Management of the Premises  4      Section 5.2 Manager’s Employees  5      Section 5.3 Budgets and Leasing Guidelines; Annual Performance  5      Section 5.4 Collection of Rents  8      Section 5.5 Leasing Duties of Manager  8      Section 5.6 Decorations and Repairs  9      Section 5.7 Operational Activities  9      Section 5.8 Taxes  10      Section 5.9 Compliance with Agreements  10      Section 5.10 Payrolls  11      Section 5.11 Banking Matters  11      Section 5.12 Inspections of Premises  11      Section 5.13 Maintenance of Records  11      Section 5.14 Staffing for Emergencies  11      Section 5.15 Tenant Relations Program  11      Section 5.16 Communications with Owner  11      Section 5.17 Books and Records  11      Section 5.18 Compliance with Laws  13      
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        Page Section 5.19 Expenditures for Emergencies  14      Section 5.20 Establishment of Website  14      Section 5.21 Sarbanes-Oxley Compliance  14      Section 5.22 Submission of Annual Reports  14      ARTICLE 6 MANAGEMENT AUTHORITY  14      Section 6.1 Limitation on Manager’s Authority  14      Section 6.2 Expenditure of Monies by Manager  15      Section 6.3 Capital Expenditures  15      Section 6.4 Contracts with Affiliates of Manager  16      Section 6.5 Execution of Leases and Contracts  17      Section 6.6 Structural Changes  17      ARTICLE 7 INSURANCE  17      Section 7.1 Owner’s Insurance  17      Section 7.2 Manager’s Insurance  18      Section 7.3 Contractor’s and Subcontractor’s Insurance  18      Section 7.4 Insurance Requirements  19      Section 7.5 Waiver of Claims and Subrogation  19      ARTICLE 8 OWNER’S RIGHT TO AUDIT  20      Section 8.1 Audit Rights of Owner  20      Section 8.2 Correction of Internal Controls  20      ARTICLE 9 BANK ACCOUNTS  21      Section 9.1 Deposits of Rents and Other Sums  21      Section 9.2 Security Deposit Records  21      Section 9.3 Owner to Have Access to Funds  22      Section 9.4 Ownership of Bank Records  22      ARTICLE 10 PAYMENT OF EXPENSES  22      Section 10.1 Payment by Manager of Expenses  22      Section 10.2 Expenses to be Borne by Manager  26      Section 10.3 Office for Manager  26 
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        Page ARTICLE 11 INSUFFICIENT INCOME  27      Section 11.1 Insufficient Income  27      ARTICLE 12 TERMINATION  27      Section 12.1 Termination by Owner or Manager  27      Section 12.2 Termination by Owner  28      Section 12.3 Breach by Manager  28      Section 12.4 Breach by Owner  28      Section 12.5 Final Accounting  28      Section 12.6 Survival of Certain Rights and Obligations  29      ARTICLE 13 DEVELOPMENT AND CONSTRUCTION MANAGEMENT SERVICES  29      Section 13.1 Construction Management Services  29      Section 13.2 Development Management Services  30      ARTICLE 14 SALE OF THE PREMISES  31      Section 14.1 Sale of Premises  31      ARTICLE 15 LEGAL PROCEEDINGS  31      Section 15.1 Legal Proceedings  31      ARTICLE 16 MANAGER’S LIABILITY  31      Section 16.1 Liability of Manager  31      Section 16.2 Indemnity of Manager  32      Section 16.3 Limitation on Making Certain Claims  32      Section 16.4 Expenditures Made in Good Faith  33      ARTICLE 17 REPRESENTATION AND WARRANTIES  33      Section 17.1 No Reliance by Owner  33      Section 17.2 Representations and Warranties  33      ARTICLE 18 CONSENTS  34      Section 18.1 Granting of Consents  34      ARTICLE 19 SUBSIDIARIES AND AFFILIATES  35      Section 19.1 Contracts with Manager’s Affiliates  35 
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        Page ARTICLE 20 NOTICES  35      Section 20.1 Notices  35      ARTICLE 21 COMPENSATION  37      Section 21.1 Fees Payable to Manager  37      Section 21.2 Failure of Owner to Timely Pay  42      ARTICLE 22 MISCELLANEOUS  42      Section 22.1 Pronouns  42      Section 22.2 Amendments  42      Section 22.3 Headings  42      Section 22.4 Waiver  42      Section 22.5 Successors and Assigns  43      Section 22.6 Governing Law  43      Section 22.7 Ownership of Premises  43      Section 22.8 Other Activities of Manager  43      Section 22.9 Compliance with Certain Laws  43      Section 22.10 Special Parties  44      Section 22.11 Counterparts  44      Section 22.12 Survival of Agreement  44      Section 22.13 Special Services  44 
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**PROPERTY MANAGEMENT AND LEASING AGREEMENT**     THIS PROPERTY MANAGEMENT AND LEASING AGREEMENT (“Agreement”) is entered into effective as ofthe ___day of ___, 20___, by and between Hines REIT Properties, L.P., a Delaware limitedpartnership (hereinafter called “Owner”), and Hines Interests Limited Partnership, a Texas limitedpartnership (hereinafter called “Manager”),WITNESSETH     WHEREAS, Owner is the owner of the land described in Schedule A attached heretotogether with the office building and other improvements located thereon (the “Premises”); and     WHEREAS, Owner wishes to obtain the benefits of Manager’s expertise in the field of realestate management and leasing by relinquishing to Manager control in the operation, direction,management, leasing and supervision of the Premises, subject to the terms and provisions of thisAgreement, and Manager, for a fee and pursuant to the terms and provisions of this Agreement,agrees to assume said control and discretion in the operation, direction, management andsupervision of the Premises on behalf of Owner.     NOW, THEREFORE, in consideration of the mutual covenants herein contained and of other goodand valuable consideration, the parties hereto agree as follows:
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ARTICLE 1APPOINTMENT     Section 1.1 Appointment of Manager. Owner hereby contracts with Manager to manage, lease(or supervise the leasing by a thirdparty), operate, direct and supervise the Premises on behalf of Owner and to provide services asrequired under this Agreement.ARTICLE 2TERM     Section 2.1 Term. Subject to and upon the terms and conditions set forth in this Agreement(including without limitation Article 12), the term of this Agreement (the “Term”) shall commenceon the date hereof and shall continue until the earlier of termination pursuant to Article 12 orten (10) years after the date of this Agreement. Thereafter, the Term shall continue from year toyear unless written notice is given by either party of its desire not to continue this Agreement atleast ninety (90) days prior to any anniversary of the commencement of this Agreement.Notwithstanding the foregoing, upon the taking of possession of the Premises by a mortgagee throughforeclosure or deed-in-lieu of foreclosure, this Agreement may be terminated by such mortgagee uponninety (90) days prior written notice thereof.ARTICLE 3RELATIONSHIP     Section 3.1 Relationship. Manager shall at all times be the independent contractor ofOwner and not the employee or agent of Owner. Manager shall have no right or power to contractwith third parties for, on behalf of, or in the name of Owner or otherwise to bind Owner. Exceptas expressly provided herein to the contrary, Owner agrees to be responsible for and shall
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reimburse Manager for all costs, expenses and disbursements reasonably and properly incurred byManager in accordance with the provisions of this Agreement in providing management, leasing (ifapplicable) andoperational services hereunder, such as, but not limited to, contracts for cleaning services,contracts for landscaping or maintenance services and orders for supplies and equipment, and Owneragrees to indemnify and hold Manager harmless from and against the same.ARTICLE 4ASSIGNABILITY     Section 4.1 Assignability by Manager. Manager shall not transfer or assign this Agreementor any part thereof or any of its rights or obligations hereunder without the prior written consentof Owner, provided that Owner’s consent shall not be required for an assignment to a HinesAffiliate (defined below). The foregoing shall not prevent Manager from either (i) pledging to anyperson or entity Manager’s right to receive fees under this Agreement, or (ii) entering intocontracts with third parties to assist Manager in providing the services required by thisAgreement, provided that, as between Owner and Manager, Manager remains ultimately responsible forthe provision of such services and Owner shall have no liability under such contracts unlessexpressly agreed to in writing by Owner. The consent of Owner to one or more assignments of thisAgreement shall not be construed as, or result in, consent by Owner to any further or futureassignment or assignments. Any assignment or attempted assignment not made strictly in accordancewith the foregoing shall be void.     As used herein, “Hines Affiliate” shall mean any partnership, limited liability company,corporation, trust or other entity as to which 50% or more of the beneficial interests
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are held,directly or indirectly, by and effective day to day Control resides in the Hines Family and/or anycurrent or former employees of Hines Interests Limited Partnership or its successors. For thepurposes of this Agreement, “Control” or “Controlled” shall mean with respect to any person, thepossession, directly or indirectly, of the power to direct or cause the direction of themanagement and policies of such person, whether through the ownership of voting securities, bycontract or otherwise.     As used herein, “Hines Family” shall mean Jeffrey C. Hines and/or Gerald D. Hines, theirparents, brothers and sisters, their respective spouses and children (natural and adopted),grandchildren or great grandchildren of any of the foregoing and/or trusts for any of theforegoing.     Section 4.2 Assignment by Owner. If Owner conveys the Premises or any part thereof to anAffiliate (defined below) of Owner, then Owner shall assign this Agreement to such Affiliate. IfOwner conveys the Premises to someone who is not an Affiliate of Owner, then the provisions ofSection 12.1 shall apply. “Affiliate” means, with reference to any entity or person, any person orentity that directly or indirectly Controls, is Controlled by or is under common Control with thatperson or entity.ARTICLE 5SERVICES OF MANAGER     Section 5.1 Management of the Premises. Manager shall manage, operate and maintain thePremises in a manner normally associated with the management and operation of a high quality officebuilding. Manager shall at all times deal with third parties (whether or not
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affiliated withManager) at arms’ length and in Owner’s interest at all times. Manager shall act in a fiduciarycapacity with respect to the proper protection of and accounting for Owner’s assets.     Section 5.2 Manager’s Employees. Manager shall have in its employ at all times asufficient number of capable employees to enable it to properly, adequately, safely andeconomically manage, lease (or supervise the leasing of), operate and maintain the Premises. Allmatters pertaining to the employment, supervision, compensation, promotion and discharge of suchemployees are the responsibility of Manager. Manager is in all respects the employer of suchemployees, but Owner may require that any particular employee or employees be removed from dutywith respect to the Premises if Owner reasonably deems such employee or employees to beincompetent, careless, insubordinate or otherwise objectionable. Manager shall fully comply withall applicable laws and regulations having to do with worker’s compensation, social security,unemployment insurance, hours of labor, wages, working conditions, and other employer-employeerelated subjects. All employees engaged by Manager shall be theemployees of Manager and not of Owner.     Section 5.3 Budgets and Leasing Guidelines; Annual Performance. Manager shall prepare andsubmit to Owner a proposed operating budget (the “Operating Budget”), capital budget (the “CapitalBudget”), marketing program and leasing guidelines (the “Marketing Program”) for the Premises forthe management, leasing and operation of the Premises for the forthcoming calendar year (or in thecase of the first calendar year in which the Term commences, the remainder of such year if it isnot a full calendar year) in a format approved by Owner. Manager shall also complete and deliverto Owner a written review of its performance for the then current calendar year at the same time(the “Performance Review”) it delivers the
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budgets and programs as contemplated in this Section5.3. The scope and substance of the Performance Review will be agreed to by the Manager and theOwner prior to the delivery of the first review. The first such budgets, program and guidelinesshall be submitted to Ownerwithin forty-five (45) days after the date of this Agreement and in the future subsequent proposedbudgets, program and guidelines shall be delivered to Owner no later than October 15 of eachcalendar year. By October 15 of each calendar year, Manager will submit to Owner (i) a summary ofthe actual (through September 30) and projected (for the full year) results of management andoperation of the Premises for such calendar year and (ii) a Performance Review for the then-currentcalendar year.     The leasing guidelines shall include the following:     (a) the minimum rental rate to be charged for office, and, if applicable, storage,antenna, telecom, retail and parking and the minimum and maximum term which may be providedin each category of space to be leased in the Premises;     (b) the maximum leasing concessions or inducements (on a per square foot basis) whichmay be provided with respect to the Premises;     (c) a list of currently vacant space in the Premises;     (d) a list of space which will become available for lease in the Premises during theapplicable calendar year; and     (e) if a third party will perform leasing services for all or a portion of thePremises, whether pursuant to a contract with Manager or as a result of a leasing agreementdirectly with Owner as contemplated by Section 5.5, a summary of any material terms of suchrelationship and the supervision thereof by Manager.
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          Owner will consider the proposed budgets, program and guidelines and then will consult withManager within forty-five (45) days after they are submitted in order to agree on an “ApprovedOperating Budget”, an “Approved Capital Budget”, and “Approved Marketing Programs”. Owner andManager will use good faith efforts to agree on the foregoing within suchforty-five (45) day period. Additionally, if Owner identifies any operating or performancedeficiencies that are within reasonable control of Manager after reviewing the Performance Review,Owner shall give Manager written notice of such deficiencies prior to the end of this forty-five(45) day period. Manager shall then have the later of 30 days, or such time as is reasonablynecessary, to cure the deficiencies identified in such notice. If such deficiencies are notcorrected with this time period, Owner shall give Manager a second notice of its desire toterminate this Agreement pursuant to Section 12.2. If Manager does not cure such deficiencieswithin thirty (30) days after this second notice, and provide Owner written notice (and whenapplicable, evidence) that such deficiencies have been cured, this Agreement may be terminated byOwner pursuant to Section 12.2.          No less frequently than quarterly, Manager shall during each calendar year review the ApprovedOperating Budget, Approved Capital Budget, and Approved Marketing Program, and compare the same toyear-to-date activity to determine whether revisions are needed. Any such needed revisions will besubmitted to Owner for its approval.          Manager agrees to use diligence and to employ all reasonable efforts to ensure that the actualcosts (net of amounts, if any, recovered from third parties) of maintaining, leasing and operatingthe Premises shall not exceed the approved budgets pertaining thereto.
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          Section 5.4 Collection of Rents. Manager shall use diligent efforts to collect all rents(including, without limitation, billings resulting from tenant participation in operating expenses,taxes and common area maintenance charges) and other charges which may become due at any time fromany tenant or from others for services provided in connection with or for the use of the Premisesor any portion thereof. All monies so collected shall be deposited in the Receipts Account(defined in Section 9.1).Manager cannot and may not terminate any lease, lock out a tenant, institute a suit for rent or foruse and occupancy, or institute proceedings for recovery of possession of any premises, without theprior written approval of Owner. In connection with such suits or proceedings only legal counseldesignated by Owner shall be retained. The estimated costs of legal services to be incurred inbringing such approved suit or proceeding shall be submitted to Owner for its approval. Managershall not write off any rental income of more than twenty percent (20%) of the gross monthly rent(up to a maximum of $10,000) for any single tenant without the prior approval of Owner.