exv10w39



 






PROPERTY MANAGEMENT AND LEASING AGREEMENT




between




HINES INTERESTS LIMITED PARTNERSHIP




and




HINES REIT 1900/2000 ALAMEDA DE LAS PULGAS LLC




for




1900/2000 ALAMEDA DE LAS PULGAS




June 28, 2005





 









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE 1 APPOINTMENT OF MANAGER 
	 	 	2	 
	Section 1.1 Appointment of Manager
	 	 	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
	 	 	4	 
	Section 5.3 Budgets and Leasing Guidelines; Annual Performance
	 	 	5	 
	Section 5.4 Collection of Rents
	 	 	7	 
	Section 5.5 Leasing Duties of Manager
	 	 	7	 
	Section 5.6 Decorations and Repairs
	 	 	8	 
	Section 5.7 Operational Activities
	 	 	8	 
	Section 5.8 Taxes
	 	 	9	 
	Section 5.9 Compliance with Agreements
	 	 	9	 
	Section 5.10 Payrolls
	 	 	9	 
	Section 5.11 Banking Matters
	 	 	9	 
	Section 5.12 Inspections of Premises
	 	 	10	 
	Section 5.13 Maintenance of Records
	 	 	10	 
	Section 5.14 Staffing for Emergencies
	 	 	10	 
	Section 5.15 Tenant Relations Program
	 	 	10	 
	Section 5.16 Communications with Owner
	 	 	10	 
	Section 5.17 Books and Records
	 	 	10	 
	Section 5.18 Compliance with Laws
	 	 	12	 
	Section 5.19 Expenditures for Emergencies
	 	 	12	 
	Section 5.20 Establishment of Website
	 	 	13	 






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	 	 	Page
	 
	 	 	 	 
	Section 5.21 Sarbanes-Oxley Compliance
	 	 	13	 
	Section 5.22 Submission of Annual Reports
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 6 MANAGEMENT AUTHORITY 
	 	 	13	 
	Section 6.1 Limitation on Manager’s Authority
	 	 	13	 
	Section 6.2 Expenditure of Monies by Manager
	 	 	13	 
	Section 6.3 Capital Expenditures
	 	 	14	 
	Section 6.4 Contracts with Affiliates of Manager
	 	 	15	 
	Section 6.5 Execution of Leases and Contracts
	 	 	15	 
	Section 6.6 Structural Changes
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 7 INSURANCE 
	 	 	16	 
	Section 7.1 Owner’s Insurance
	 	 	16	 
	Section 7.2 Manager’s Insurance
	 	 	16	 
	Section 7.3 Contractor’s and Subcontractor’s Insurance
	 	 	17	 
	Section 7.4 Insurance Requirements
	 	 	17	 
	Section 7.5 Waiver of Claims and Subrogation
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 8 OWNER’S RIGHT TO AUDIT 
	 	 	18	 
	Section 8.1 Audit Rights of Owner
	 	 	18	 
	Section 8.2 Correction of Internal Controls
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 9 BANK ACCOUNTS 
	 	 	19	 
	Section 9.1 Deposits of Rents and Other Sums
	 	 	19	 
	Section 9.2 Security Deposit Records
	 	 	20	 
	Section 9.3 Owner to Have Access to Funds
	 	 	20	 
	Section 9.4 Ownership of Bank Records
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 10 PAYMENT OF EXPENSES 20
	 	 	 	 
	Section 10.1 Payment by Manager of Expenses
	 	 	21	 
	Section 10.2 Expenses to be Borne by Manager
	 	 	24	 
	Section 10.3 Office for Manager
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 11 INSUFFICIENT INCOME 
	 	 	25	 
	Section 11.1 Insufficient Income
	 	 	25	 






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	 	 	Page
	 
	 	 	 	 
	ARTICLE 12 TERMINATION 
	 	 	25	 
	Section 12.1 Termination by Owner or Manager
	 	 	25	 
	Section 12.2 Termination by Owner
	 	 	26	 
	Section 12.3 Breach by Manager
	 	 	26	 
	Section 12.4 Breach by Owner
	 	 	26	 
	Section 12.5 Final Accounting
	 	 	26	 
	Section 12.6 Survival of Certain Rights and Obligations
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 13 DEVELOPMENT AND CONSTRUCTION MANAGEMENT SERVICES 
	 	 	27	 
	Section 13.1 Construction Management Services
	 	 	27	 
	Section 13.2 Development Management Services
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 14 SALE OF THE PREMISES 
	 	 	29	 
	Section 14.1 Sale of Premises
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 15 LEGAL PROCEEDINGS 
	 	 	29	 
	Section 15.1 Legal Proceedings
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 16 MANAGER’S LIABILITY 
	 	 	29	 
	Section 16.1 Liability of Manager
	 	 	29	 
	Section 16.2 Indemnity of Manager
	 	 	29	 
	Section 16.3 Limitation on Making Certain Claims
	 	 	30	 
	Section 16.4 Expenditures Made in Good Faith
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 17 REPRESENTATION AND WARRANTIES 
	 	 	31	 
	Section 17.1 No Reliance by Owner
	 	 	31	 
	Section 17.2 Representations and Warranties
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 18 CONSENTS 
	 	 	32	 
	Section 18.1 Granting of Consents
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 19 SUBSIDIARIES AND AFFILIATES 
	 	 	33	 
	Section 19.1 Contracts with Manager’s Affiliates
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 20 NOTICES
	 	 	33	 
	Section 20.1 Notices
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 21 COMPENSATION
	 	 	34	 
	Section 21.1 Fees Payable to Manager
	 	 	34	 






iii









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Section 21.2 Failure of Owner to Timely Pay
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 22 MISCELLANEOUS 
	 	 	39	 
	Section 22.1 Pronouns
	 	 	39	 
	Section 22.2 Amendments
	 	 	39	 
	Section 22.3 Headings
	 	 	40	 
	Section 22.4 Waiver
	 	 	40	 
	Section 22.5 Successors and Assigns
	 	 	40	 
	Section 22.6 Governing Law
	 	 	40	 
	Section 22.7 Ownership of Premises
	 	 	40	 
	Section 22.8 Other Activities of Manager
	 	 	40	 
	Section 22.9 Nondiscrimination
	 	 	41	 
	Section 22.10 Special Parties
	 	 	41	 
	Section 22.11 Counterparts
	 	 	41	 
	Section 22.12 Survival of Agreement
	 	 	41	 
	Section 22.13 Special Services
	 	 	41	 







iv









 








PROPERTY MANAGEMENT AND LEASING AGREEMENT




          THIS PROPERTY MANAGEMENT AND LEASING AGREEMENT (“Agreement”) is entered into effective as of
the 28th day of June, 2005, by and between HINES INTERESTS LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter called “Owner”), and HINES REIT 1900/2000 ALAMEDA DE LAS PULGAS LLC, a
Delaware limited liability company (hereinafter called “Manager”).




W I T N E S S E T H



          WHEREAS, Owner is the owner of the land described in Schedule A attached hereto
together 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 real
estate 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 this
Agreement, 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 and
supervision of the Premises on behalf of Owner.




          NOW, THEREFORE, in consideration of the mutual covenants herein contained and of other good
and valuable consideration, the mutual receipt and legal sufficiency of which the parties
acknowledge, the parties agree as follows:




1









 





ARTICLE 1

APPOINTMENT OF MANAGER




          Section 1.1 Appointment of Manager. Owner hereby contracts with Manager to manage, lease, operate, direct and supervise the Premises
on behalf of Owner and to provide services as required under this Agreement.




ARTICLE 2

TERM




          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 commence
on the date hereof and shall continue until the earlier of termination pursuant to Article 12 or
ten (10) years after the date of this Agreement. Thereafter, the Term shall continue from year to
year unless written notice is given by either party of its desire not to continue this Agreement at
least 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 through
foreclosure or deed-in-lieu of foreclosure, this Agreement may be terminated by such mortgagee upon
ninety (90) days prior written notice thereof.




ARTICLE 3

RELATIONSHIP




          Section 3.1 Relationship. Manager shall at all times be the independent contractor of
Owner and not the employee or agent of Owner. Manager shall have no right or power to contract
with third parties for, on behalf of, or in the name of Owner or otherwise to bind Owner. Except
as expressly provided herein to the contrary, Owner agrees to be responsible for and shall
reimburse Manager for all costs, expenses and disbursements




2









 




reasonably and properly incurred by
Manager in accordance with the provisions of this Agreement in providing management, leasing and
operational 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 Owner agrees to indemnify and
hold Manager harmless from and against the same.




ARTICLE 4

ASSIGNABILITY




          Section 4.1 Assignability by Manager. Manager shall not transfer or assign this Agreement
or any part thereof or any of its rights or obligations hereunder without the prior written consent
of Owner, provided that Owner’s consent shall not be required for an assignment to a Hines
Affiliate (defined below). The foregoing shall not prevent Manager from pledging to any person or
entity Manager’s right to receive fees under this Agreement. The consent of Owner to one or more
assignments of this Agreement shall not be construed as, or result in, consent by Owner to any
further or future assignment or assignments. Any assignment or attempted assignment not made
strictly in accordance with 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 are held,
directly or indirectly, by and effective day to day Control resides in the Hines Family and/or any
current or former employees of Hines Interests Limited Partnership or its successors. For the
purposes of this Agreement, “Control” or “Controlled” shall mean with respect to any person, the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of such person, whether through the ownership of voting securities, by contract or
otherwise.




3









 





          As used herein, “Hines Family” shall mean Jeffrey C. Hines and/or Gerald D. Hines, their
parents, 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 the
foregoing.




          Section 4.2 Assignment by Owner. If Owner conveys the Premises or any part thereof to an
Affiliate (defined below) of Owner, then Owner shall assign this Agreement to such Affiliate. If
Owner conveys the Premises to someone who is not an Affiliate of Owner, then the provisions of
Section 12.1 shall apply. “Affiliate” means, with reference to any entity or person, any person or
entity that directly or indirectly Controls, is Controlled by or is under common Control with that
person or entity.




ARTICLE 5

SERVICES OF MANAGER




          Section 5.1 Management of the Premises. Manager shall manage, operate and maintain the
Premises in a manner normally associated with the management and operation of a high quality office
building. Manager shall at all times deal with third parties (whether or not affiliated with
Manager) at arms’ length and in Owner’s interest at all times. Manager shall act in a fiduciary
capacity 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 a
sufficient number of capable employees to enable it to properly, adequately, safely and
economically manage, lease, operate and maintain the Premises. All matters pertaining to the
employment, supervision, compensation, promotion and discharge of such employees are the
responsibility of Manager. Manager is in all respects
the employer of such employees, but Owner may require that any particular employee or employees be
removed from duty with




4









 




respect to the Premises, if Owner reasonably deems such employee or
employees to be incompetent, careless, insubordinate or otherwise objectionable. Manager shall
fully comply with all applicable laws and regulations having to do with workman’s compensation,
social security, unemployment insurance, hours of labor, wages, working conditions, and other
employer-employee related subjects. All employees engaged by Manager shall be the employees of
Manager and not of Owner.




          Section 5.3 Budgets and Leasing Guidelines Annual Performance. Manager shall prepare and
submit to Owner a proposed operating budget (the “Operating Budget”), capital budget (the “Capital
Budget”), marketing program and leasing guidelines (the “Marketing Program”) for the Premises for
the management, leasing and operation of the Premises for the forthcoming calendar year (or in the
case of the first calendar year in which the Term commences, the remainder of such year if it is
not a full calendar year) in a format approved by Owner. Manager shall also complete and deliver
to Owner a written review of its performance for the then current calendar year at the same time
(the “Performance Review”) it delivers the budgets and programs as contemplated in this Section
5.3. The scope and substance of the Performance Review will be agreed to by the Manager and the
Owner prior to the delivery of the first review. The first such budgets, program and guidelines
shall be submitted to Owner within forty-five (45) days after the date of this Agreement and in the
future subsequent proposed budgets, program and guidelines shall be delivered to Owner no later
than October 15 of each calendar year. By October 15 of each calendar year, Manager will submit to
Owner (i) a summary of the actual (through September 30) and projected (for the full year) results
of
management and operation of the Premises for such calendar year and (ii) a Performance Review for
the then current calendar year.




5









 





          The leasing guidelines shall include the following:





     (a) the minimum rental rate to be charged for office, and, if applicable, storage,
antenna, retail and parking and the minimum and maximum term which may be provided in each
category of space to be leased in the Premises;




     (b) the maximum leasing concessions or inducements (on a per square foot basis) which
may be provided with respect to the Premises;




     (c) a list of currently vacant space in the Premises; and




     (d) a list of space which will become available for lease in the Premises during the
applicable calendar year.



          Owner will consider the proposed budgets, program and guidelines and then will consult with
Manager within forty-five (45) days after they are submitted in order to agree on an “Approved
Operating Budget”, an “Approved Capital Budget”, and “Approved Marketing Programs”. Owner and
Manager will use good faith efforts to agree on the foregoing within such forty-five (45) day
period. Additionally, if Owner identifies any operating or performance deficiencies 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 reasonably necessary, to cure the
deficiencies identified in such notice. If such deficiencies are not corrected with this time
period, Owner shall give Manager a second notice of its desire to terminate this Agreement pursuant
to Section 12.2. If Manager does not cure such deficiencies within thirty (30) days after this
second notice, and provide Owner written notice (and when
applicable, evidence) that such deficiencies have been cured, this Agreement may be terminated
by Owner pursuant to Section 12.2.




6









 





          No less frequently than quarterly, Manager shall during each calendar year review the Approved
Operating Budget, Approved Capital Budget, and Approved Marketing Program, and compare the same to
year-to-date activity to determine whether revisions are needed. Any such needed revisions will be
submitted to Owner for its approval.




          Manager agrees to use diligence and to employ all reasonable efforts to ensure that the actual
costs (net of amounts, if any, recovered from third parties) of maintaining, leasing and operating
the Premises shall not exceed the approved budgets pertaining thereto.




          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 from
any tenant or from others for services provided in connection with or for the use of the Premises
or 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 for use and occupancy, or institute proceedings for recovery of
possession of any premises, without the prior written approval of Owner. In connection with such
suits or proceedings only legal counsel designated by Owner shall be retained. The estimated costs
of legal services to be incurred in bringing such approved suit or proceeding shall be submitted to
Owner for its approval. Manager shall 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.




          Section 5.5 Leasing Duties of Manager. Manager shall act as leasing manager for the
Premises and be responsible for the leasing activities of the Premises. Manager may act without
further approvals as long as Manager acts in accordance with the approved marketing




7









 




program and
leasing guidelines. It is understood that Owner is the only signatory authority for the execution
of all lease and related leasing documents and Manager shall not represent to the contrary to
prospective tenants and other parties.




          Section 5.6 Decorations and Repairs. Manager shall institute and supervise all ordinary
and extraordinary repairs, decorations and alterations, including the administration of a
preventative maintenance program for all mechanical, electrical and plumbing systems and equipment
and the design and installation of any supplemental H.V.A.C. electrical, mechanical or plumbing
devices, including metering devices, which are installed on behalf of any tenant(s) of the
Premises, provided that such (unless the same relate to emergencies) are included in an Approved
Operating Budget or in an authorization by Owner pursuant to an Approved Capital Budget.


          Section 5.7 Operational Activities. Manager shall institute and supervise all operational
activities of the Premises, including but not limited to:





     A. Supervision of the cleaning contractor;




     B. Supervision of the security contractor on behalf of Owner;




     C. Supervision of any landscaping contractor;




     D. Supervision of the window washing contractor;




     E. Responsibility for and supervision of the central plant and other H.V.A.C.
equipment;




     F. Responsibility for and supervision of a preventative maintenance program;




     G. Responsibility for and supervision for any necessary repairs to the Premises;




     H. Supervision for the maintenance of the elevators serving the Premises; and



8









 






     I. Responsibility for making arrangements for and administering account for utilities;
and




     J. Any other activity reasonably required for the normal operation of any high quality
office building.



          As used herein, “supervise” and “supervision” shall also include responsibility for the
particular task to the extent Owner so directs and provides the funds therefor.




          Section 5.8 Taxes. Manager shall obtain and verify bills for real estate and personal
property taxes, improvement assessments and other like charges which are or may become liens
against any portion of the Premises and recommend payment or appeal as its best judgment may
decide. Manager shall not make any payments on account of any ground lease, mortgage, deed of
trust or other security instrument, if any, affecting any Premises unless such payments are
included in the Approved Operating Budget or otherwise approved by Owner.





          Section 5.9 Compliance with Agreements. Manager shall operate the Premises in compliance
with any ground lease, space lease, mortgage, deed of trust or other security instruments affecting
the Premises and of which Manager has knowledge, but Manager shall not be required to make any
payment or incur any liability on account thereof (unless Manager voluntarily is or becomes a party
to any document
executed in connection therewith and then only to the extent provided by the terms of such document
which are expressly applicable to Manager).




          Section 5.10 Payrolls. Manager shall prepare or cause to be prepared all payrolls and
maintain comprehensive payroll records.




          Section 5.11 Banking Matters. Manager shall handle all banking matters related to its
contractual responsibility.




9









 





          Section 5.12 Inspections of Premises. Manager shall conduct, from time to time as Manager
deems necessary or as Owner requests, inspections of the Premises and provide Owner with a written
report on its findings to the extent requested by Owner.




          Section 5.13 Maintenance of Records. Manager shall, on behalf of Owner, maintain complete
and identifiable records and files on all matters pertaining to the Premises, including, without
limitation, all revenues and expenditures, service contracts and leases, all of which records and
files shall be the property of Owner.




          Section 5.14 Staffing for Emergencies. Manager shall have competent personnel available at
all times for emergencies.




          Section 5.15 Tenant Relations Program. Manager shall administer a tenant relations program
that maintains a high visibility of management presence and service to tenants.




          Section 5.16 Communications with Owner. Manager shall be available for communications with
Owner and will keep Owner advised of items affecting the Premises.




          Section 5.17 Books and Records.





     (a) Manager, in the conduct of its responsibilities to Owner, shall maintain adequate
and separate books and records for the Premises in accordance with generally accepted
accounting principles (“GAAP”), which shall be supported by sufficient documentation to
ascertain that said entries are properly and accurately recorded, which books and records
shall be the property of Owner. However, any computer software or other systems of Manager
which are used to generate or keep such books and records shall remain the property of
Manager. Such books and records shall include all information necessary to calculate and to
audit amounts contained therein and shall otherwise comply with the requirements of the
documents referred to in Section 5.9



10









 






hereof. Such books and records, as well as those
records referred to in Section 5.13 hereof, shall be maintained by Manager at the Premises
or at such other location as may be mutually agreed upon in writing, and at Manager’s
discretion in detail or summary form at the headquarters of Manager located in Houston,
Texas. Manager shall utilize procedures to attempt to ensure such control over accounting
and financial transactions as is reasonably required to protect Owner’s assets from theft,
error or fraudulent activity.




     (b) Manager shall maintain records of, and furnish customary (or as requested) reports
summarizing, all transactions occurring from the first day of the prior calendar quarter to
the last day of the prior calendar quarter. These reports are to be received by Owner no
later than thirty (30) calendar days after the end of the above described accounting period
(or sooner if necessary for Owner or any partner of Owner’s (direct or indirect) parent to
comply with governmental requirements of which Manager is given reasonable advance notice)
and must report financial details which Owner may
request. Reports on vacancies and other matters pertaining to the management, leasing,
operation, and maintenance of the Premises will be provided on a monthly basis in a format
approved by Owner. The reports shall include a comparison of quarterly, year-to-date
actual, and projected year-end income and expense with the Approved Operating Budget for the
Premises in a format approved by Owner. In addition, Manager shall remit to Owner all
unexpended funds (except for a reserve approved by Owner for contingencies and operating
working capital or such lesser amount as may be available after all proper disbursements
from the Receipts Account) in the Receipts Account as of the end of the reporting quarter
(or such other reporting period as may be agreed by Owner and Manager).



11









 






     (c) All financial statements and reports required by Owner will be prepared on an
accrual basis in accordance with GAAP, except for special financial reports which by their
nature require a deviation from GAAP.




     (d) Manager shall prepare such additional reports at such times and in such forms as
may be reasonably requested from Owner from time to time. All reports of Manager to Owner
shall be furnished in electronic form if Owner so requests.




     (e) Manager shall maintain necessary liaison with Owner’s accountant and shall provide
such accountant with such reports and other information as Owner shall request.



          Section 5.18 Compliance with Laws. Manager shall use its reasonable efforts to assure full
compliance with federal, state and municipal laws, ordinances, regulations and orders relative to
the use, operation, repair and maintenance of the Premises and with the rules, regulations or
orders of the local Board of Fire
Underwriters or other similar body. Manager shall promptly remedy any violation of any such law,
ordinance, rules, regulation or order which comes to its attention, all at Owner’s expense.




          Expenses incurred in remedying violations may be paid from the Disbursement Account provided
such expenses do not exceed Five Thousand and No/100 Dollars ($5,000.00) in any one instance. When
more than such amount is required or if the violation is one for which the Premises title holder
might be subject to penalty, Manager shall notify Owner by the end of the next business day to
assure that prompt arrangements may be made to remedy the violation.




          Section 5.19 Expenditures for Emergencies. Notwithstanding anything contained herein to the
contrary, in case of emergency, Manager may make expenditures for repairs and other items which
exceed approved budgets or prior approvals from Owner without




12









 




prior written approval if necessary
in the reasonable judgment of Manager, to prevent damage or injury. Owner must be informed of any
such expenditures before the end of the next business day.




          Section 5.20 Establishment of Website. Any and all reports required of Manager under this
Agreement shall be made available at a website to be established by Manager accessible through the
Internet within one year after Owner so requests.




          Section 5.21 Sarbanes-Oxley Compliance. If requested by Owner, all reporting, record
keeping, internal controls and like matters by Manager shall comply with the Sarbanes-Oxley Act.




          Section 5.22 Submission of Annual Reports. All annual reports to be furnished by Manager
shall be furnished within thirty (30) days after the end of the applicable calendar year.




ARTICLE 6

MANAGEMENT AUTHORITY




          Section 6.1 Limitation on Manager’s Authority. Manager’s authority is expressly limited to
the provisions provided herein or as may be amended in writing from time to time by Owner and
mutually agreed to and accepted by Manager in writing.




          Section 6.2 Expenditure of Monies by Manager. The Approved Operating Budget shall
constitute an authorization for Manager to expend money to operate, lease and manage the Premises
and Manager may do so without further approval as long as Manager does not exceed the year-to-date
budgeted amount for any line item (after any allocation of any contingency that may be contained in
the budget and that can be applied to such line item). Whenever the year-to-date budgeted amount
for any line item is (or appears likely to be)




13









 




exceeded, a year-to-date budget variance and a
revised operating budget for such line item shall be presented to Owner for its consideration.
Except as expressly permitted in this Agreement, Manager may not act outside of the Approved
Operating Budget until the budget revision is approved in writing by Owner, which approval Owner
will endeavor to give in a timely manner. Once approved, Manager’s authority with the revised or
any additionally revised budgets is the same as that authorized for the original budget.




          Section 6.3 Capital Expenditures. The Approved Capital Budget shall not constitute an
authorization for Manager to expend any money. Any capital expenditures must be specifically
authorized by Owner. With respect to the purchase and installation of capital items, Manager shall
recommend that Owner purchase such items when Manager believes such purchase to be necessary or
desirable. Owner may arrange to
purchase and install the same itself or may authorize Manager to do so subject to prescribed
supervision and specification requirements and conditions. Unless Owner specifically waives such
requirements, either by memorandum or as an amendment to the contract, all new or replacement
capital items exceeding Twenty-five Thousand and No/100 Dollars ($25,000.00) shall be awarded on
the basis of competitive bidding, solicited in the following manner:





     (a) A minimum of three written bids will be obtained for each purchase in excess of
$25,000.




     (b) Each bid will be solicited in a form prescribed by Owner so that uniformity will
exist in the bid quotes.




     (c) Manager shall provide Owner with all bid responses accompanied by Manager’s
recommendations as to the most acceptable bid. If Manager advises



14









 






acceptance of other than
the lowest bidder, Manager shall adequately support, in writing, its recommendations.


Owner shall be free to accept or reject any and all bids. Owner will communicate to Manager in
writing its acceptance or rejection of bids. Owner may pay for capital expenses from its own
resources or may authorize payment by Manager out of the Disbursement Account.





          Section 6.4 Contracts with Affiliates of Manager. Manager shall not enter into any
contract with an Affiliate of Manager for cleaning, maintaining, repairing or servicing the
Premises or any of the constituent parts of the Premises without the prior written consent of
Owner. As a condition to obtaining such consent, Manager shall supply Owner with a copy of the
proposed contract and shall state to Owner the affiliation between Manager (or other person or
persons in control of Manager) and the party proposed to supply such goods or services, or both.
Prior to entering into any such contract, whether or not
with an affiliated or related party, Manager shall submit a proposal to Owner and Owner may veto
the same if Owner reasonably deems it to be unnecessary, wasteful or inappropriate. Further, any
such contract must be on market terms and Owner may require Manager to demonstrate the same through
third party bids or other means. In addition to Owner’s veto right referenced above, if required
by the governance documents of the general partner of the sole member of Owner, any such contract
must be approved by the independent members of the board of directors of such general partner. Any
such contract will include prudent cancellation rights.




          Section 6.5 Execution of Leases and Contracts. All leases and related lease documents, all
service contracts and all purchases, and all legal documentation related thereto, are to be in the
name of Owner in the form prescribed by Owner and shall be executed by Owner, with the exception of
contracts permitted under Section 6.4 hereof and of purchase




15









 




orders related to the purchase of
items within approved budgets, which may be executed by Manager. Additionally, Manager shall
execute on behalf of Owner such service agreements as Owner may authorize from time to time.




          Section 6.6 Structural Changes. Owner expressly withholds from Manager any power or
authority to make any structural change to the Premises or to make any other major alterations or
additions in or to the Premises or equipment therein without the prior written direction of Owner.




ARTICLE 7

INSURANCE




          Section 7.1 Owner’s Insurance. Throughout the term of this Agreement, Owner shall obtain and maintain the insurance described
below (to the extent the same is available at commercially reasonable rates):





	 	(a)	 	All-risks property insurance (including comprehensive boiler &
machinery coverage) on a full replacement cost basis covering the Premises.
	 
	 	(b)	 	Commercial general liability insurance on an occurrence basis
with Owner and Manager as insureds with limits of not less than Five Million
and No/100 Dollars ($5,000,000) each occurrence combined single limit on bodily
injury, death or property damage. Owner’s insurance shall be primary and
non-contributory to any insurance otherwise carried by Manager.





          Section 7.2 Manager’s Insurance. Manager shall obtain and maintain:





	 	(a)	 	Comprehensive crime/fidelity coverage in the amount of
$1,000,000 and shall name Owner as loss payee.





16









 






	 	(b)	 	All-risks property insurance on a full replacement cost basis
covering Manager’s personal property on the Premises.
	 
	 	(c)	 	Worker’s Compensation insurance as required by statute.
	 
	 	(d)	 	Employer’s Liability insurance in the amount of $1,000,000 each
accident.
	 
	 	(e)	 	Automobile Liability insurance in the amount of $1,000,000 each
occurrence.





          Section 7.3 Contractor’s and Subcontractor’s Insurance. Manager shall require that all contractors and subcontractors brought onto the Premises have
insurance coverage at the contractor’s or subcontractor’s expense, in the following minimum
amounts, with Owner and Manager as additional insureds on the commercial general liability
insurance:




	 	 	 	 	 	 	 
	 

	 	(a)
	 	Worker’s Compensation:
	 	Statutory Amount
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	Employer’s Liability:
	 	$1,000,000 minimum
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	Commercial General Liability:
	 	$1,000,000 combined single limit
for bodily injury and property damage
	 
	 	 	 	 	 	 
	 

	 	(d)
	 	Comprehensive Automobile

Liability Insurance
	 	$1,000,000 each occurrence
combined single limit for bodily injury and property damage






          Section 7.4 Insurance Requirements. The insurance required of all parties to this
Agreement shall be written with insurers authorized to do business in the State of California and
shall be rated at least A:IX by A.M. Best’s Rating Service.




17









 





          Section 7.5 Waiver of Claims and Subrogation. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, OWNER AND MANAGER HEREBY WAIVE ANY AND ALL RIGHTS OF RECOVERY, CLAIM,
ACTION OR CAUSE OF ACTION AGAINST THE OTHER, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS,
MEMBERS, SERVANTS OR SHAREHOLDERS FOR ANY LOSS OR DAMAGE TO THE OTHER’S PROPERTY BY REASON OF FIRE,
THE ELEMENTS, OR ANY OTHER CAUSE WHICH IS COVERED OR
COULD BE COVERED BY STANDARD “ALL-RISKS” PROPERTY INSURANCE (INCLUDING COMPREHENSIVE BOILER AND
MACHINERY COVERAGE), REGARDLESS OF CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY HERETO,
ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, MEMBERS, SERVANTS OR SHAREHOLDERS. EACH
PARTY’S PROPERTY INSURANCE POLICIES SHALL CONTAIN PROVISIONS WHERE THE INSURER WAIVES THEIR RIGHT
OF SUBROGATION AGAINST SUCH OTHER PARTY.




ARTICLE 8

OWNER’S RIGHT TO AUDIT




          Section 8.1 Audit Rights of Owner. Owner reserves the right for Owner’s employees or
others appointed by Owner to conduct examinations, during normal business hours without
notification, of the books and records maintained for Owner by Manager no matter where the books
and records are located. Owner also reserves the right to perform any and all additional audit
tests relating to Manager’s activities, either at the Premises or at any office of Manager,
provided such audit tests are related to those activities performed by Manager for Owner.





18









 





          Section 8.2 Correction of Internal Controls. Should Owner’s employees or appointees
discover either weaknesses in internal control or errors in record keeping, Manager shall correct
such discrepancies either upon discovery or within a reasonable period of time thereafter. Manager
shall inform Owner in writing of the action taken to correct such audit discrepancies. Any and all
such audits conducted either by Owner’s employees or appointees will be at the sole expense of
Owner, unless such audit (i) indicates fraud or gross neglect by Manager in its record keeping, or
(ii) discloses an error on the
part of Manager which affects Owner adversely and is equal to or greater than 2% of the greater of
gross expenses or gross receipts of the Property for the period audited, and in the case of (i) or
(ii) above, Manager shall bear the reasonable cost of the applicable audit.




ARTICLE 9

BANK ACCOUNTS




          Section 9.1 Deposits of Rents and Other Sums. Manager shall deposit all rents and other
funds collected from the operation of the Premises, including any and all advance funds, in a bank
or banks designated by Owner, in a special account or accounts (the “Receipts Account”) for the
Premises in the name of Owner (so that at all times the funds deposited therein shall be the sole
and exclusive property of Owner). The bank shall be informed in writing of the designated
representatives of Manager that Owner has approved as having access to such accounts. Manager,
with Owner’s approval, shall establish a second account (the “Disbursement Account”). Manager
shall pay the operating expenses of the Premises and any other payments relative to the Premises as
required by the terms of this Agreement (including Manager’s fees under Article 21 hereof) out of
the Disbursement Account. Money shall be transferred from the Receipts Account to the Disbursement
Account as deemed necessary by Manager, and approved




19









 




by Owner. Owner shall have the right from
time to time to change the number and types of bank accounts used by Manager and the method of
transferring funds between those accounts. Notwithstanding the foregoing, Manager shall comply
with the terms of any applicable cash management, blocked account or similar agreements entered
into by Owner and Manager in connection with any loan obtained by Owner and secured by the
Premises, and in the event of
any conflict between any such agreements and this Section 9.1, the terms and provisions of such
agreements shall control.




          Section 9.2 Security Deposit Records. Manager shall, on behalf of Owner, maintain detailed
records of all security deposits and such records will be open for inspection by Owner’s employees
or appointees. Manager shall maintain such security deposits as required by applicable law and the
terms of the leases, as approved by Owner.




          Section 9.3 Owner to Have Access to Funds. Through the use of signature cards, authorized
representatives of Owner shall be permitted access to any and all funds in the bank accounts
described in Section 9.1. However, Owner and Owner’s representative may not draw against said bank
accounts without written communication to Manager. Manager’s authority, and the authority of any
designated representative of Manager, to draw against such accounts may be terminated at any time
by Owner upon written notice to Manager.




          Section 9.4 Ownership of Bank Records. All bank records pertaining to Owner’s accounts
shall be the property of Owner.




20









 





ARTICLE 10

PAYMENT OF EXPENSES




          Section 10.1 Payment by Manager of Expenses. The following operating costs (except as
excluded by Section 10.2), to the extent included in approved budgets, are to be paid directly from
the Disbursement Account described in Section 9.1:





     (a) Costs of the gross salary and compensation, to include payroll taxes, insurance,
workmen’s compensation and other benefits, of the on-site property management team and
approved staff;




     (b) To the extent recoverable from tenants, cost of gross salary and compensation, to
include payroll taxes, insurance, workmen’s compensation and other benefits, and related
overhead of personnel (for example, accountants and bookkeepers) who may be located off-site
(for cost saving, administration or other reasons) but who directly support the operations
of the Premises, excluding any personnel located in Manager’s regional offices or
headquarters except as provided in Section 10.1(w);




     (c) Cost of forms, papers, ledgers, and other supplies and equipment used in the
on-site Manager’s office;




     (d) Cost of insurance permitted or required to be maintained by Manager pursuant to the
provisions of this Agreement;




     (e) Cost of all bonuses paid to on-site employees excluding, however, any incentive
compensation;




     (f) Costs to correct any violation of federal, state and municipal laws, ordinances,
regulations and orders relative to the leasing, use, repair and maintenance of the Premises,
or relative to the rules, regulations or orders of the local board of fire



21









 






underwriters or
other similar body, provided that such cost is not a result of the gross negligence or
willful misconduct of Manager or its agents or employees;




     (g) Actual costs of making all repairs, decorations and alterations to the Premises;




     (h) Costs incurred by Manager in connection with all service contracts entered into by
Manager and/or Owner in accordance with authorizations in this Agreement or approved by
Owner;




     (i) Costs of collection of delinquent rentals;




     (j) Costs of printed forms and supplies required for use at the Premises;




     (k) Costs of capital expenditures;




     (l) Costs of printed checks for each bank account required by Owner;




     (m) Costs of adding machines, personal computers and computer software, and other
equipment of such type used for managing the Premises;




     (n) Leasing commissions payable to third parties;




     (o) Costs of Owner approved advertising, business expenses, professional dues,
professional development, employee relocation expenses and travel;




     (p) To the extent the same can be recovered from tenants under their leases, the cost
of Manager’s implementation of any new accounting or reporting systems including Web based
systems or systems that utilize servers and other equipment that may be located off-site of
the Property, as well as the cost of any new general ledger adopted by Manager;




     (q) Legal fees of attorneys, provided such attorneys have been approved by Owner in
writing in advance of retention;



22









 






     (r) Costs of outside audits as required by leases and other outside audits as may be
requested by Owner in writing;




     (s) Property taxes, special assessments and costs of utilities;




     (t) Costs of a management office, including necessary furnishings and equipment, as
provided for in Section 10.3 hereof;




     (u) All other costs and expenses for which Owner is obligated to pay or reimburse
Manager as provided for in this Agreement;




     (v) Any out-of-pocket costs Manager incurs in performing the leasing services described
in Section 5.5, including the costs of printing leasing brochures and travel and
entertainment costs; and




     (w) To the extent the same relate to or support the performance of Manager’s duties
under this Agreement, the cost of personnel and overhead expenses related to such personnel
who are located in Manager’s headquarters and regional offices. Examples of such support
include risk management, regional and central accounting, cash and systems management, human
resources and payroll, technology and internal audit. The amount to be included under this
Section 10.1(w) shall (1) be included only to the extent the same is recovered from tenants
under their leases and (2) not exceed in any calendar year $.210 per rentable square foot
within the Property; however, such amount shall be increased on January 1 of each year by
the increase in the Consumer Price Index from the preceding January 1 beginning in 2006,
such adjusted amount to be rounded to the nearest $.005. “Consumer Price Index” or “CPI”
means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price
Index for all Urban Consumers (U.S. city average; base 1982-84 = 100), published by the
Bureau of Labor statistics of the United States



23









 






Department of Labor. If at any time during
the Term the CPI is discontinued or published less frequently, Manager and Owner shall
mutually and reasonably agree to substitute an official index published by the Bureau of
Labor Statistics, or a successor
governmental agency, which index is most nearly equivalent to the CPI or to a
substitute procedure which reasonably reflects and monitors consumer prices.




     (x) Any and all other costs necessary to the management, leasing, operation and
maintenance of the Premises or reasonably incurred by Manager in performing its duties
hereunder which are covered within approved budgetary guidelines, which may exceed approved
budgetary guidelines but which result from emergencies or which are otherwise approved by
Owner.



          Section 10.2 Expenses to be Borne by Manager. The following expenses or costs incurred by
or on behalf of Manager shall be at the sole cost and expense of Manager and shall be paid by
Manager out of the sums payable to Manager under Article 21:





     (a) Costs of gross salary and wages, payroll taxes, insurance, worker’s compensation,
and other benefits of Manager’s personnel not located on-site (except as provided in Section
10.1(b) and Section 10.1(w) above).




     (b) All costs incurred as a result of Manager’s fraud, breach of this Agreement, gross
negligence or willful misconduct.




     (c) Except as provided in Section 10.1(w), the cost of any personnel located in
Manager’s home or regional offices, as well as any overhead costs related to those offices.



          Section 10.3 Office for Manager. Owner shall also furnish to Manager, at Owner’s expense,
an office located in the Premises of a sufficient size (mutually agreed upon) to




24









 




serve as the
management and leasing office for the
Premises, including standard leasehold improvements and appropriate furnishings and typical office
equipment.




ARTICLE 11

INSUFFICIENT INCOME




          Section 11.1 Insufficient Income. If at any time the gross income (or cash in the Receipts
Account and the Disbursement Account) from the Premises shall not be sufficient to pay the bills
and charges which may be incurred with respect to the Premises, or if such gross income is
insufficient to pay the combined sum of both bills and charges, Manager shall not be obligated to
pay said expenses and charges from its own account.




          Manager shall notify Owner immediately upon first projection or awareness of a cash shortage
or pending cash shortage and Owner and Manager shall jointly determine payment priority. After
Manager has paid, to the extent of available gross income, all bills and charges based upon the
ordered priorities set jointly by Owner and Manager, Manager shall submit to Owner a statement of
all remaining unpaid bills. Owner shall thereafter and without undue delay provide sufficient
monies to pay any unpaid expenses properly payable by Owner.




ARTICLE 12

TERMINATION




          Section 12.1 Termination by Owner or Manager. Either Owner or Manager may terminate this
Agreement upon thirty (30) days advance notice to the other in the event (A) the Premises is sold
to a third party which is unaffiliated with Owner in a bona fide transaction, (B) the Property is
substantially destroyed or condemned and in the
case of destruction cannot be restored within one year after the casualty, or (C) an Affiliate of
Manager is no longer the advisor to the Owner and the Owner’s general partner.




25









 





          Section 12.2 Termination by Owner. The Owner may terminate this agreement if the Owner has
identified and communicated to the Manager any operating or performance deficiencies and such
deficiencies are not cured by the Manager in accordance with the provisions set forth in Section
5.3.




          Section 12.3 Breach by Manager. If Manager commits a material breach of any obligations of
Manager under this Agreement, and if such breach shall continue for thirty (30) days after written
notice from Owner (plus, with respect to breaches which Manager commences diligent efforts to cure
within such period, but which cannot reasonably be cured within thirty (30) days, such additional
period not to exceed ninety (90) additional days as is reasonably necessary to cure such breach),
then Owner, in addition to the other remedies it may have at law or in equity, shall have the right
to terminate this Agreement.




          Section 12.4 Breach by Owner. If Owner (A) fails to timely pay any sum owed to Manager
which remains unpaid for more than ten (10) days after notice from Manager or (B) commits a
material violation or breach of any other obligation of Owner under this Agreement which remains
uncured for more than thirty (30) days after notice from Manager (plus, in the case of breaches
which cannot reasonably be cured within thirty (30) days, such additional time as is reasonably
required to cure such breach not to exceed ninety (90) days), then Manager may, in addition to its
other remedies at law or in equity, terminate this Agreement by written notice to Owner.




          Section 12.5 Final Accounting. Upon termination of this Agreement for any reason, Manager shall deliver to Owner (or such other
person or entity as Owner may designate) the following with respect to the Premises:




26









 






     (a) A final accounting, reflecting the balance of income and expenses, as of the date
of termination, to be delivered within thirty (30) days after such termination.




     (b) Any balance or monies of Owner or tenant security deposits, or both, including,
without limitation, all funds in any bank accounts under Article 9 hereof, held by or
thereafter received by Manager to be delivered immediately upon such termination or
withdrawal.




     (c) All records, contracts, leases, receipts for deposits, unpaid bills, other papers
or documents, supplies, files, keys, and equipment, which pertain to the Premises to be
delivered immediately to Owner (or such other person or entity as Owner may designate) at
the Premises upon such termination.




     (d) All service contracts in the name of Manager pertaining to the Premises shall be
assigned to, and assumed by Owner.



          Section 12.6 Survival of Certain Rights and Obligations. Upon the expiration or earlier
termination of this Agreement, neither party shall have any further rights or obligations under
this Agreement, except that Articles 12, 16, 17, and 21 shall survive the termination of this
Agreement.




ARTICLE 13

DEVELOPMENT AND CONSTRUCTION MANAGEMENT SERVICES




          Section 13.1 Construction Management Services. Manager shall act as construction manager with respect to the construction of any leasehold
improvements within the Premises if requested by either Owner or the applicable tenant. With
respect thereto Manager shall:





     (a) Evaluate and report the existing conditions of the base building.



27









 






     (b) Prepare preliminary budgets and schedules.




     (c) Review and assist in the coordination of leasehold improvements design drawings.




     (d) Conduct pre-bid meetings.




     (e) Evaluate bids and make recommendations of the award of contracts.




     (f) Conduct construction progress meetings. Evaluate ongoing schedules and the quality
of workmanship and adherence of work to contract documents, specifications and drawings.




     (g) Evaluate and verify accuracy of monthly construction draw requests.




     (h) Assist architect in reviewing shop drawings.




     (i) Direct architect/engineers to create punchlist.




     (j) Coordinate with building management the use of the service elevator, the need for
temporary utilities and loading docks.



          Section 13.2 Development Management Services. Manager shall act as development manager for
any redevelopment of the Premises. As such, Manager shall be responsible for coordinating and
facilitating the planning and performance of all construction related activities, including
recommending the retention of architects, engineers and other consultants, assisting in cost
estimating, advising Owner as to the selection of
contractors to perform the work, and coordinating on behalf of Owner the work of such consultants
and contractors.




28









 





ARTICLE 14

SALE OF THE PREMISES




          Section 14.1 Sale of Premises. If Owner executes a listing agreement with a broker (other
than Manager) for the sale of any portion of the Premises, Manager shall cooperate with such broker
to the end that the respective activities of Manager and broker may be carried on without friction
and without interference with tenants and occupants. Manager will permit the broker to exhibit the
Premises during reasonable business hours to the extent not prohibited by any tenant lease and
provided the broker has secured Manager’s permission in advance. Manager shall be reimbursed by
Owner for all reasonable costs incurred by Manager in coordinating any activities regarding any
sale of all or any portion of the Premises.




ARTICLE 15

LEGAL PROCEEDINGS




          Section 15.1 Legal Proceedings. Should any claims, demands, suits or other legal
proceedings be made or instituted by any person against Owner or title holder of the Premises which
arise out of any of the matters relating to this Agreement, Manager shall promptly give Owner all
pertinent information and reasonable assistance in the defense or other disposition thereof, at the
sole expense of Owner.




ARTICLE 16

MANAGER’S LIABILITY




          Section 16.1 Liability of Manager. Manager shall not, in the performance of this Agreement, be liable to Owner or to any other
person for any act or omission (negligent, tortious or otherwise) of any officer, agent or employee
of Manager, unless the same results from




29









 




negligence or misconduct of Manager or its officers,
employees, or agents acting within the scope of their office, employment or agency, or the breach
of this Agreement by Manager.




          Section 16.2 Indemnity of Manager. OWNER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS
MANAGER AND ITS OFFICERS, AGENTS AND EMPLOYEES (INDIVIDUALLY AND COLLECTIVELY, THE “MANAGER
INDEMNITEES”) FROM AND AGAINST ANY AND ALL CAUSES OF ACTION, CLAIMS, LOSSES, COSTS, EXPENSES,
LIABILITIES, DAMAGES OR INJURIES (INCLUDING LEGAL FEES AND DISBURSEMENTS) THAT MANAGER INDEMNITEES
MAY DIRECTLY OR INDIRECTLY SUSTAIN, SUFFER OR INCUR ARISING FROM OR IN CONNECTION WITH THIS
AGREEMENT OR THE PREMISES, UNLESS THE SAME RESULTS FROM (A) NEGLIGENCE OR MISCONDUCT OF THE MANAGER
INDEMNITEES ACTING WITHIN THE SCOPE OF THEIR OFFICE, EMPLOYMENT OR AGENCY, OR (B) THE BREACH OF
THIS AGREEMENT BY MANAGER. OWNER SHALL ASSUME ON BEHALF OF THE MANAGER INDEMNITEES THE DEFENSE OF
ANY ACTION AT LAW OR IN EQUITY WHICH MAY BE BROUGHT AGAINST THE MANAGER INDEMNITEES BASED UPON A
CLAIM FOR WHICH INDEMNIFICATION IS APPLICABLE HEREUNDER.




          Section 16.3 Limitation on Making Certain Claims. Notwithstanding any other provisions of this Agreement, in no event shall Owner make any claim
against Manager, or its Affiliates or subsidiaries, on account of any good faith interpretation by
Manager of the provisions of this Agreement (even if such interpretation is later determined to be
a breach of this Agreement) or any alleged errors in judgment made in good faith and in accordance
with this Agreement in connection with the operation of the Premises hereunder by Manager or the




30









 




performance of any advisory or technical services provided by or arranged by Manager. The
provisions of this Section 16.3 shall not be deemed to release Manager from liability for its gross
negligence.




          Section 16.4 Expenditures Made in Good Faith. Owner shall not object to any expenditures
made by Manager in good faith in the course of its management of the Premises or in settlement of
any claim arising out of the operation of the Premises unless such expenditure is specifically
prohibited by this Agreement. The provisions of this Section 16.4 shall not be deemed to release
Manager from liability for its negligence.




ARTICLE 17

REPRESENTATION AND WARRANTIES




          Section 17.1 No Reliance by Owner. Owner hereby represents that in entering into this
Agreement Owner has not relied on any projection of earnings, statements as to the possibility of
future success or other similar matter which may be prepared by Manager and understands that no
guaranty is made or implied by Manager as to the future financial success of the Premises.





          Section 17.2 Representations and Warranties. Each party to this Agreement represents and
warrants the following:





     (a) It is duly organized, validly existing and in good standing under the laws of its
jurisdiction of formation with all requisite power and authority to enter into this
Agreement and to conduct its respective business.




     (b) This Agreement constitutes the legal, valid and binding obligation of the party and
is enforceable in accordance with its terms.



31









 






     (c) No consents or approvals are required from any governmental authority or other
person or entity for the party to enter into and perform this Agreement. All corporate or
partnership action on the part of the party necessary for the authorization, execution and
delivery of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly taken.




     (d) The execution and delivery of this Agreement by the party, and the consummation of
the transactions contemplated hereby, does not conflict with or contravene the provisions of
its organizational documents or any agreement or instrument by which it or its properties
are bound or any law, rule, regulation, order or decree to which it or its properties are
subject.




     (e) The party has obtained or shall obtain all permits and licenses to the extent
required by applicable law to perform its obligations hereunder, except with respect to
permits and licenses, the lack of which do not and would not, individually or in the
aggregate, have a material adverse effect on such party’s ability to perform its obligations
under this Agreement.



ARTICLE 18

CONSENTS




          Section 18.1 Granting of Consents. Except as otherwise expressly provided herein to the contrary, whenever in this Agreement the
consent or approval of Manager or Owner is required, such consent or approval shall not be
unreasonably withheld or unduly delayed. Such consent shall also be in writing only and shall be
duly executed by an authorized officer or agent for the party granting such consent or approval.




32









 





ARTICLE 19

SUBSIDIARIES AND AFFILIATES




          Section 19.1 Contracts with Manager’s Affiliates. Any contract or lease with respect to
the Premises between Manager and any Affiliate of Manager shall be subject to the prior written
approval of Owner, and at Owner’s sole discretion such approval may be withheld.




ARTICLE 20

NOTICES




          Section 20.1 Notices. Any notice provided for in or permitted under this Agreement shall
be made in writing, and may be given or served by (i) delivering the same in person or by facsimile
transmission to the party to be notified, or (ii) depositing the same in the United States mail,
postage prepaid, registered or certified with return receipt requested, and addressed to the party
to be notified at the address herein specified, or (iii) by depositing same with a reputable
overnight courier service. Any notice shall be effective only if and when received by the party to
be notified (or the date such receipt is refused by the addressee) unless the day it is received is
not a business day, and then it shall be deemed received on the next business day. For the purpose
of notice, the address of the party shall be, until changed as hereinafter provided for, as
follows:




	 	 	 	 	 
	If to the Owner:	 	Hines REIT 1900/2000 Alameda De Las Pulgas LLC
	 	 	2800 Post Oak Boulevard
	 	 	Suite 5000
	 	 	Houston, Texas 77056-6118
	 

	 	Attention:
	 	Charles N. Hazen
	 

	 	Fax No.:
	 	(713) 966-7851
	 
	 	 	 	 
	With a copy to:	 	Baker Botts L.L.P.
	 	 	2001 Ross Avenue
	 	 	Dallas, Texas 75201
	 

	 	Attention:
	 	Joel M. Overton, Jr., Esq.
	 

	 	Fax No.:
	 	(214) 661-4938






33









 






	 	 	 	 	 
	If to the Manager:	 	Hines Interests Limited Partnership
	 	 	2800 Post Oak Boulevard
	 	 	Suite 5000
	 	 	Houston, Texas 77056-6118
	 

	 	Attention:
	 	C. Hastings Johnson
	 

	 	Fax No.:
	 	(713) 966-2636
	 
	 	 	 	 
	With a copy to:	 	Baker Botts L.L.P.
	 	 	2001 Ross Avenue
	 	 	Dallas, Texas 75201
	 

	 	Attention:
	 	Joel M. Overton, Jr., Esq.
	 

	 	Fax No.:
	 	(214) 661-4938





or to such other address as Owner may specify in a written notice to Manager or Manager may specify
in a written notice to Owner in accordance with this Section 20.1.




          Each party shall have the right from time to time and at any time to change its respective
address and each shall have the right to specify as its address any other address by at least
fifteen (15) days’ written notice to the other party. Each party shall have the right from time to
time to specify additional parties to whom copies of notices must be given by delivering to the
other party fifteen (15) days’ written notice thereof setting forth the address of such additional
party or parties; provided, however, that no party shall have the right to designate more than
three (3) such additional parties. Notice required to be delivered hereunder to either party shall
not be deemed to be effective until the additional parties, if any, designated by such party
have been given notice in a manner deemed effective pursuant to the terms of this Section 20.1.




ARTICLE 21

COMPENSATION




          Section 21.1 Fees Payable to Manager. In addition to the sums Owner is obligated to pay
Manager as described in this Agreement, each calendar year Manager shall receive remuneration for
its services in managing and leasing the Premises as follows:




34









 






     (a) A management fee (the “Management Fee”) equal to:




     (1) For single tenant properties, the lesser of (A) two and one half percent
(2.5%) of the Gross Revenues for the Premises or (B) the amount of the Management
Fee that can be passed through to tenants of the Premises under their leases,
subject to a minimum fee of at least one percent (1.0%) of Gross Revenues for the
Premises.




     (2) For multi tenant properties, the lesser of (A) two and one half percent
(2.5%) of the Gross Revenues for the Premises or (B) the amount of the Management
Fee that can be passed through to tenants of the Premises under their leases.




     (3) Gross Revenues includes but is not limited to revenues arising from rentals
(which includes all tenant recoveries for operating expenses, special or extra
services and the like, including, without limitation, real estate taxes and
assessments) for such year payable by tenants who lease space in the Premises,
parking revenues, revenues from the leasing or licensing of antenna space and all
other revenues of whatever nature. The Management Fee shall be payable monthly
based on interim results and projections with annual reconciliations.




     (b) For the leasing services described in Section 5.5, the following sums (the “Leasing
Fees”):




     (1) For any lease or amendment thereto pursuant to which space is leased by a
tenant which is executed or negotiated during the Term, a fee equal to one and
one-half percent (1.5%) of the gross rentals which are payable pursuant to or on
account of the applicable document during the term of the lease.



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     (2) For any lease extension, renewal, expansion or other similar right whereby
a tenant extends its lease or leases additional space which is exercised during the
Term, a fee equal to one and one-half percent (1.5%) of the gross rentals which are
payable pursuant to or on account of the applicable document for the term of such
renewal, extension or expansion.




     (3) For purposes of subsections (1) and (2) above, the following shall apply:




     (i) Owner shall pay the Leasing Fees to Manager regardless of whether
an outside broker was used in connection with any such lease, amendment,
renewal, extension or expansion. Owner shall be responsible for any fees
paid to outside brokers, and such fees shall not count against, or be
considered part of, the Leasing Fees;




     (ii) Owner’s obligation to pay the Leasing Fees shall survive the
expiration or earlier termination of this Agreement, it being agreed that
Manager shall be entitled to such Leasing Fee after such expiration or
termination to the extent provided in this Section 21.1. “Executed or
negotiated during the Term” and “exercised during the Term” also includes
leases and other instruments executed and options and other rights
exercisable within ninety (90) days after the Term, if the tenant under said
lease or other instruments had substantial negotiations with Manager during
the Term (and for purposes hereof, “substantial negotiations” shall mean
that a written proposal and related correspondence have been exchanged by
Manager and the prospective



36









 






tenant or any agent thereof and discussions
regarding such proposal and correspondence have occurred). Manager shall
notify Owner in a monthly report prior to the end of the Term of its
substantial negotiations with prospective tenants;




     (iii) gross rentals for triple net leases will include an estimate of
operating expenses to be paid by tenants in the first (1st) lease year and
such expenses shall not be increased in determining gross rentals in later
years for purposes of determining the Leasing Fees; and




     (iv) Rent increases based on changes in the Consumer Price Index shall
not be taken into account in calculating gross rentals for purposes of
determining the Leasing Fees except to the extent such lease includes a
floor on the rent increases based on the Consumer Price Index, in which
event for purposes of calculating gross rentals, rent shall be deemed
increased based on such floor.




The Leasing Fees shall be payable as follows: (x) fifty percent (50%) upon the date the
applicable document is executed or right is exercised, as applicable, and (y) the balance
upon the date such tenant takes occupancy of the space subject to such lease or amendment,
or in the case of a renewal, on the first (1st) day of the applicable renewal term. In the
event the tenant has an early termination option under its lease, however, the portion of
the Leasing Fees attributable to periods after the applicable termination date shall not be
payable until the tenant has waived the termination option or the right to exercise such
termination option has expired or terminated.



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     (c) For the construction management services described in Section 13.1, Manager shall
be entitled to retain or be paid any construction management fee paid by any tenant directly
to Manager or to the landlord under its lease and any such fee that is paid to Owner shall
be received by Owner on behalf of and as agent for Manager and shall be paid over by Owner
to Manager. To the extent contained in the budget described below, Manager also shall be
reimbursed for all third party costs reasonably incurred by Manager in performing
construction management duties (e.g., consultants, legal, delivery and graphics) to the
extent the same are approved and payable by the applicable tenant. Owner and Manager shall
agree on the scope of such direct costs as well as a budget relating thereto before Manager
begins performing such services. If the tenant does not agree in its lease to pay a
construction management fee, then the following shall apply:




     (x) if Manager provides such construction management services utilizing on-site
employees, Owner shall not be obligated to pay a construction management fee to
Manager; or




     (y) if Manager utilizes off-site employees to provide such construction
management services, Owner shall be obligated to pay Manager the direct costs
Manager incurs in providing such services, including the salary, benefits and
burdens of any such employees to the extent of the time they spend performing such
services, to the extent contained in a budget approved by Owner as described above.




     (d) For the development management services described in Section 13.2, Manager shall be
paid a fee equal to two and one-half percent (2.5%) of the total project costs relating to
the redevelopment. To the extent contained in the budget described



38









 






below, Manager also will
be entitled to recover from Owner all direct costs incurred by Manager in performing such
services, including but not limited to the salary, benefits and burdens of all employees
directly involved in such project, the cost of any project office and overhead relating
thereto (e.g., rent, telephones, computers) and all out-of-pocket costs incurred by Manager
(for example, travel). Owner and Manager shall agree on the scope of such direct costs as
well as a budget relating thereto before Manager begins performing such services.




     (e) Upon submission of the financial statements as required by Article 5, Manager shall
submit to Owner Manager’s calculation of all fees, which fees shall be paid by Owner to
Manager.



          Section 21.2 Failure of Owner to Timely Pay. Any sums owed by Owner to Manager which are
not paid when due shall bear interest at the lesser of (i) the prime rate plus 5 percentage points,
or (ii) the maximum nonusurious rate of interest permitted by applicable law.




ARTICLE 22

MISCELLANEOUS




          Section 22.1 Pronouns. The pronouns used in this Agreement referring to Manager or Owner
shall be understood and construed to apply whether Manager or Owner be an individual,
co-partnership, corporation or an individual or individuals doing business under a firm or trade
name, and the masculine and neuter pronouns shall each include the other and may be used
interchangeably with the same meaning.



          Section 22.2 Amendments. Except as otherwise herein provided, any and all amendments,
additions or deletions of this Agreement shall be null and void unless approved by the parties in
writing.




39









 





          Section 22.3 Headings. All headings herein are inserted only for convenience and ease of
reference and are not to be considered in the construction or interpretation of any provision of
this Agreement.




          Section 22.4 Waiver. The waiver of any of the terms and conditions of this Agreement on
any occasion or occasions shall not be deemed as waiver of such terms and conditions on any future
occasion. No waiver shall be implied by any isolated or repeated action or non-action. To be
effective, any waiver must be in writing executed by the party to be bound thereby.




          Section 22.5 Successors and Assigns. Subject to Article 4 and Section 12.1(A), this
Agreement shall be binding upon and inure to the benefit of Owner, its successors and/or assigns,
and shall be binding upon and inure to the benefit of Manager, and its successors and permitted
assigns.




          Section 22.6 Governing Law. This Agreement shall be construed, interpreted and applied in
accordance with and shall be governed by, the laws applicable to the state where the Premises are
located.




          Section 22.7 Ownership of Premises. Owner represents that it is the fee owner of the
Premises and of the improvements and appurtenances and equipment installed therein, except such
equipment as may be leased or acquired by Owner on a hire-purchase basis or as may be owned, leased
or installed by tenants or other third parties.




          Section 22.8 Other Activities of Manager. Nothing contained in this Agreement shall be
construed so as to prohibit Manager from owning, operating, managing or investing in any real
estate development. Additionally, Manager may engage in or possess an interest in




40









 




other ventures
of any nature and description independently or with others and Owner shall have no rights with
respect thereto by virtue of this Agreement.




          Section 22.9 Nondiscrimination. Manager agrees not to discriminate against any employee or
applicant for employment because of said individual’s race, religion, sex, national origin,
physical or mental handicap or status as a disabled veteran of the Vietnam Era, in regard to any
position for which the employee or applicant is otherwise qualified.




          Section 22.10 Special Parties. Notwithstanding any provision hereof to the contrary, in no
circumstances shall a shareholder, limited partner, director, officer, employee or agent (“Special
Party”) of a party hereto or of a Special Party of a party hereto be personally liable for any of
the obligations
of such party hereto under this Agreement except to the extent, if any, provided in any separate
agreement now or hereafter executed and delivered by such Special Party.




          Section 22.11 Counterparts. This Agreement may be executed in several counterparts, each
of which shall be an original of this Agreement but all of which, taken together, shall constitute
one and the same agreement.




          Section 22.12 Survival of Agreement. The rights and obligations of Manager and Owner shall
survive a termination of this Agreement.




          Section 22.13 Special Services. Notwithstanding anything in this Agreement to the
contrary, except as required by a tenant lease which has been approved by Owner, Manager shall not
furnish or render services to the tenants of the Premises other than those services customarily
furnished to tenants of similar properties unless (a) Manager makes separate, adequate charges to
tenants for such services, (b) such charges are received and retained by Manager, (c) Manager bears
the cost of providing such services and (d) Manager first obtains




41









 




Owner’s written consent. For
purposes of this Section 22.13, it is agreed that maintenance, trash collection, janitorial
services and cleaning services, the furnishing of water, heat, light, air conditioning, public
entrances and exits, guard or security services and the provision of parking facilities on an
unreserved basis and without separate charge are examples of services customarily furnished to the
tenants of similar properties.




[END OF PAGE; SIGNATURE PAGES FOLLOW]



          IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.




	 	 	 	 	 	 	 
	 	 	OWNER:
	 
	 	 	 	 	 	 
	 	 	HINES REIT 1900/2000 ALAMEDA DE LAS

PULGAS, LLC,
	 	 	a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Charles N. Hazen
	 	 	 	 	 
	 	 	Name:	 	Charles N. Hazen
	 	 	Title:	 	Manager
	 
	 	 	 	 	 	 
	 	 	MANAGER:
	 
	 	 	 	 	 	 
	 	 	HINES INTERESTS LIMITED PARTNERSHIP,

a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Hines Holdings, Inc.,

a Texas corporation,

its general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Charles M. Baughn
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Charles M. Baughn
	 

	 	 	 	Title:
	 	Executive Vice President






42









 





SCHEDULE A




Property Description




See Attached





A-1