MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT made in Atlanta, Georgia
between__________________________ ("Owner"), and VIP Management, LLC, ("Agent")
a Georgia Limited Liability Company, shall become effective as of May 1, 1999.
NOW THEREFORE in consideration of the promises and mutual covenants
contained herein, Owner appoints VIP Management, LLC as the exclusive Property
management and leasing Agent for the Property as defined below.
ARTICLE I
Definition
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1.01 AFFILIATE. (a) Any person directly or indirectly controlling,
controlled by or under common control with another person; (b) any person owning
or controlling 10% or more of the outstanding voting securities of such other
person; and (c) any officer, manager, director, partner or trustee of such
person. The term "person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, trust or unincorporated
organization.
1.02 BUDGET. A written estimate or projection of all receipts and
expenditures for the operation of the Property during a Fiscal Year, including,
without limitation, all estimated rentals (including ancillary income) and all
estimated repairs, maintenance and capital projects.
1.03 FISCAL YEAR. Each calendar year ending December 31, all or a part
of which falls within the term of this Agreement, unless otherwise stipulated
herein.
1.04 GROSS RECEIPTS. All Gross Receipts of every kind and nature
derived from the operation of the Property during a specified period, without
limitation, laundry income, application fees, late fees, and recreation area
fees; excluding only: (a) security deposits (to the extent not applied to
delinquent rents or damages); (b) proceeds from a sale or refinance of the
Property: (c) proceeds from insurance for the reimbursement of loss or damage to
the Property, or any part thereof, except that insurance payments for loss of
rents will be considered as part of Gross Receipts; (c) condemnation awards or
payments received in lieu of condemnation of the Property, or any part thereof;
and (d) any trade discounts and rebates received in connection with the purchase
of Personal Property or services in connection with the operation of the
Property.
1.05 HUD. U.S. Department of Housing and Urban Development.
1.06 PERSONAL PROPERTY. All equipment, supplies, furnishings, furniture
and all other items of Personal Property now or hereafter owned by Owner and
located upon or used, or useful for, or necessary or adapted for the operation
of the Property.
1.07 PROPERTY. The ____ unit apartment community known and doing
business as ______________________________, located at _____________________,
_____________, MS. ________. The term Property used herein includes all of the
Land, Building(s) and the Personal Property collectively associated with the
above mentioned apartment community.
ARTICLE II
Term of Agreement
-----------------
2.01 The initial term of this Agreement is two (2) years, commencing on May
1, 1999 and ending on April 30, 2001. This Agreement shall automatically renew
for consecutive one (1) year periods, under the same terms and conditions as the
initial term, unless either party delivers written notice of non-renewal, at
least sixty (60) days prior to the expiration date of the then current term.
2.02 This contract is exclusive and non-cancelable except as stipulated
herein. This contract may only be immediately terminated, with notice in
writing, under one or more of the following conditions:
(a) mutual agreement of Owner and Agent;
(b) sale or transfer of ownership in an arms length transaction;
(c) gross violation by the Agent of the terms and responsibilities outlined
in this agreement;
(d) any criminal action, gross negligence or willful misconduct on the part
of the Agent, its employees or assigns including such acts as fraud,
misappropriation of funds, etc.;
(e) in the event a petition of bankruptcy is filed by or against either the
Agent or Owner, or in the event either makes an assignment for the benefit of
creditors or takes advantage of any insolvency act.
2.03 If this Agreement is cancelled at any time or for any reason, other
than at the end of the initial term or subsequent renewal term, with the
exception of 2.02(c) or 2.02(d) above, a cancellation fee equal to two months
fee will become due and payable.
2.04 Upon the termination of this Agreement, either by written notice of
non-renewal or by any earlier termination as herein provided, Agent shall:
(a) deliver to Owner a final accounting;
(b) surrender and deliver up to Owner possession of the Property and all
rents and income, including tenant security deposits and other monies of Owner
on hand and in any bank accounts, less amounts owed to Agent pursuant to this
Agreement;
(c) deliver to Owner, as received, any monies due Owner under this
Agreement but received after such termination;
(d) deliver to Owner all equipment not owned by Agent, materials and
supplies, keys, contracts and documents, and such other accounting papers and
records pertaining to this Agreement as Owner shall request;
(e) assign any right Agent may have in and to any existing contracts
relating to the operations and maintenance of the Property as Owner shall
require; and
(f) deliver to Owner, or Owner's duly appointed agent, all books and
records, contracts, leases, receipts for deposits and unpaid bills.
2.05 Termination of this Agreement shall terminate all rights and
obligations of the parties hereunder, except that such termination shall not
prejudice the rights of either party against the other for any breach of this
Agreement. Without limitation on the generality of the foregoing. Owner's
termination of this Agreement shall terminate any and all rights of Agent to act
on behalf of or with respect to the Property (except to the extent Agent or its
Affiliates have such rights by virtue of their interest in Owner as evidenced by
the Partnership Agreement) and Agent shall, if Owner so requests, execute a
notice to third parties that Agent's rights have been so terminated; provided,
however, that in the event this Agreement is terminated, Agent shall cooperate
prior to such termination with Owner to allow Owner to effectively and
productively continue the leasing and other management activities of Agent.
Without limitation on the foregoing, Agent shall deliver to Owner such
information and documentation as Owner may reasonably request concerning
potential tenants for the Property.
2.06 Notwithstanding any of the above, HUD and/or the lender has the right
to terminate this agreement pursuant to the Project Owner's/Management Agent's
Certification signed in conjunction with this agreement.
2.07 In the event of default by Agent hereunder, Owner shall promptly give
Agent written notice of such default. If the default is the failure to pay any
sum payable to the Owner hereunder (a "Monetary Default"), Agent shall have ten
(10) days to cure such default. If the default is any other than a Monetary
Default (a "Non-Monetary Default"), Agent shall have 30 days to cure such
Non-Monetary Default, or such longer period as necessary to cure such default if
the Non-Monetary Default is not susceptible to cure with the 30 days and the
Agent is diligently undertaking the cure thereof. A Non-Monetary Default shall
be the failure of the Agent to comply with any agreement, covenant or
undertaking in this Agreement, other than those pertaining to the payments of
sums to the Owner hereunder.
ARTICLE III
Appointment
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Owner hereby grants to Agent, or an Affiliate, the sole and exclusive right
to manage, lease and operate the Property, subject to the terms and provisions
of this Agreement. During the term of this Agreement, Owner may participate in
the day-to-day operation of the Property, however, it shall not at any time
directly order or instruct any onsite employees or other personnel engaged in
the management or operation of the Property but shall give its directions or
discuss any problems it may have with the appropriate supervisory personnel of
the Agent.
ARTICLE IV
Management
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4.01 COSTS OF OPERATION. All costs incurred by Agent in connection with the
management, leasing and operation of the Property shall be borne by Owner,
including, but not limited to, copies, phone charges, postage, payroll
processing, and computer charges, etc. except for the following costs which
shall be borne by Agent:
(a) costs relating to bookkeeping services required to be performed
hereunder that are performed at the Agent's home office; and
(b) salaries and payroll expenses of multi-site and home office Employees
of Agent; however budgeted salaries, expenses and benefits of personnel employed
for the operation or management of the Property in accordance with Section 4.04
hereof shall be paid by the Owner.
4.02 GENERAL MANAGEMENT DUTIES. Agent shall use diligence to manage, lease
and operate the Property in a professional manner, and shall consult with Owner
and keep Owner advised as to all major or extraordinary matters and without
limitation, at Owner's expense, perform the following services and duties for
Owner in a faithful, diligent and efficient manner:
(a) maintain businesslike relations with tenants of the Property whose
service requests shall be received, considered and recorded in systematic
fashion in order to show the action taken with respect to each. Complaints of a
serious nature shall, after thorough investigation, be reported to Owner with
appropriate recommendations;
(b) collect all rents and other sums and charges due from tenants,
subtenants, licensees and concessionaires of the Property and, if required,
retain attorneys or collection agencies for such purpose, including instituting
actions required to evict tenants and recover possession of the Property, sue
for and recover rent and when expedient settle, compromise and release such
actions or suits or reinstate such tenancies;
(c) perform and cause to be performed marketing, advertising and leasing
activities designed to meet Owner goals as contained in the Approved Budget;
(d) execute new and renewal leases with tenants in accordance with the
Approved Budget; screen prospective tenants for credit-worthiness and other
appropriate leasing criteria; maintain accurate leasing records and files; and
perform other normal and customary duties related to maintaining the occupancy
of the Property in accordance with the goals contained in the Approved Budget;
(e) inspect and process move-outs and related paperwork promptly; handle
all tenant security deposits in accordance with all applicable laws concerning
the Manager's and/or Owner's responsibility for security deposits and record
keeping requirements, if any.
(f) enforce the provisions of the lease and community rules and regulations
in a consistent manner with all tenants; periodically review community rules and
regulations and make such additions, modifications or deletions as appropriate;
cause the lease and other legal documents used in the leasing and post-leasing
process to be reviewed by an attorney and changed as necessary to maintain
compliance with all applicable laws.
(g) pay all expenses of the property, to the extent funds are available, in
a timely fashion from funds collected and deposited into Property bank accounts;
(h) prepare or cause to be prepared for execution and filing all forms,
reports and returns required by all federal, state and local laws in connection
with unemployment insurance, worker's compensation, insurance, disability
benefits, Social Security and other similar taxes now in effect or hereafter
imposed, and also any other requirements relating to the employment of personnel
for the Property; however, Agent shall not be obligated to prepare any of
Owner's local, state, or federal income tax returns;
(i) pay all sums and make all deposits becoming due and payable under the
provisions of any ground lease or any loan secured by a mortgage or trust deed
against the Property, or any part thereof, and otherwise perform all covenants
and obligations required to be performed under the provisions of any such ground
lease, mortgage or trust deed (to the extent that the performance of such
covenants and obligations are within the control of Agent);
(j) apply for all replacement reserve or escrow reimbursements from
accounts held by any lender or mortgage servicer in accordance with all
applicable rules and provisions; and
(k) perform such other acts and deeds as are reasonable, necessary and
proper in the discharge of its management duties under this Agreement.
4.03 BUDGETS.
(a) Agent shall prepare and submit for approval of Owner not later than
thirty (30) days prior to the end of each Fiscal Year, a proposed budget with
respect to the operation and management of the Property for the ensuing Fiscal
Year. Such Budget shall include all Gross Receipts expected to be collected, as
well as all cash expenditures of the property including but not limited to all
salaries and benefits, leasing and advertising costs, administrative costs,
maintenance and repair items, utilities, taxes and insurance, debt service and
capital or replacement reserve items. In the event Owner, in Owner's sole
judgement, disapproves of any proposed Budget submitted by Agent, Owner shall
give Agent written notice thereof, in which event Agent shall make all revisions
thereto which Owner shall direct and resubmit the proposed Budget to Owner for
approval. In the absence of such written notice of disapproval within thirty
(30) days after delivery of the Budget to Owner, the Budget shall be deemed to
have been approved by Owner. Each approved Budget shall constitute the control
instrument under which Agent shall operate for the Fiscal Year covered thereby.
Approval of the Budget shall be deemed to be approval by Owner of all items
specified therein.
(b) Agent shall not incur or permit to be incurred, expenses in any
approved Budget (excluding utility expenses, general real estate taxes,
insurance premiums, financing costs and emergency expenses) in excess of ten
percent (10%) of the amount set forth in the Budget for any single line item in
an expense classification, on a year to date basis, (e.g., cleaning expenses,
H.V.A.C. expenses, etc.) or in excess of five percent (5%) of the aggregate
expenditures in each expense classification, on a year to date basis. Except as
set forth herein and in Section 4.06, there shall be no variance from any
approved Budget, without the prior written consent of Owner.
4.04 PROPERTY PERSONNEL. In accordance with approved Budgets, Agent shall,
at Owner's expense, hire, employ, supervise and discharge all Employees required
in connection with the operation and management of the Property. All Employees
working on the Property are considered to be Employees of the Owner and not the
Agent even though salaries and benefits may be paid through a master agency
account. All salaries, taxes, insurance and other benefits paid to such
Employees through a master agency account shall be reimbursed immediately and
shall not be considered an expense of the management company. The Agent shall
not grant any non-budgeted employee fringe benefits and plans not required by
laws or union contract without written consent of Owner. However, Owner agrees
to review and approve an annual bonus plan for on-site Employees at the time of
Budget approval should bonuses not be included in the approved Budget. Agent
will not discriminate against any Employee or applicant for employment because
of race, creed, color, sex or national origin. Said Employees shall include the
following:
(a) Community Manager: A person who is experienced in the administration
and operation of residential Property.
(b) Customer Service Representative: A person who is trained to lease
apartments to qualified prospective Residents, as apartments become vacant
throughout the year and trained to assist the Manager in resolving all property
and resident issues.
(c) Maintenance Technician: A person who is trained in maintaining and
enhancing the physical property condition by responding to resident service
requests and performing routine and preventive maintenance.
(d) Such other sales, office and maintenance personnel required to operate
and maintain the Property including additional office personnel,
air-conditioning mechanics, electricians, plumbers, painters, carpenters,
grounds keepers, janitorial and custodial persons, as Agent reasonably deems
necessary and is included in the approved budget.
4.05 CONTRACTS AND SUPPLIES. Agent shall, at Owner's expense, upon the best
terms available, enter into contracts on behalf of Owner for the furnishing to
the Property of required utility services, heating and air conditioning
services, pest control, other maintenance, and any other services and
concessions which are required in connection with the maintenance and operation
of the Property. Agent shall also place purchase orders for services and
Personal Property as are necessary to properly maintain the Property. All such
contracts and orders shall be subject to the limitations set forth in section
4.03 hereof. When taking bids or issuing purchase orders, Agent shall use its
best efforts to secure for and credit to Owner, any discounts, commissions or
rebates obtainable as a result of such purchases or services. Agent shall use
its best efforts to make purchases and (where necessary or desirable) obtain
bids for necessary labor and materials at the lowest possible cost as in its
judgement is consistent with good quality, workmanship and service standards.
Agent shall not incur any obligation to any person at a price or fee higher than
that which would have been charged as a result of a bona fide arms length
negotiation.
4.06 ALTERATIONS, REPAIRS AND MAINTENANCE.
(a) Agent shall, at Owner's expense, perform or cause to be performed all
necessary or desirable repairs, maintenance, cleaning, painting and decorating,
alterations, replacements and improvements in and to the Property as are
customarily made in the operation of properties of the kind, size and quality of
the Property; provided, however, that no unbudgeted alterations, additions or
improvements shall be made without the prior written approval of Owner (unless
performed pursuant to any lease or budget previously approved by Owner). In
addition, no unbudgeted expenditure in excess of $2,000 per item shall be made
except as provided for in Section 4.03, or unless such repairs are immediately
necessary for the preservation or the safety of the Property, or for the safety
of the tenants of the Property, or required to avoid the suspension of any
necessary service to the Property, or are required by any judicial or
governmental authority having jurisdiction. These repairs may be made by the
Agent without prior approval and regardless of the cost limitations imposed by
this Section 4.06(a); further, provided that Agent shall as soon as practicable
give written notice to Owner of any such emergency repairs for which prior
approval is not required.
(b) In accordance with the terms of approved Budgets or upon written
request of Owner, Agent shall, from time to time during the term hereof, at
Owner's expense, make or cause to be made all required capital improvements,
replacements or repairs to the Property; provided, however, if Agent is required
to perform extraordinary services in connection with such improvements, repairs
or replacements, which services exceed those customarily rendered by managing
agents of properties similar to the Property, then Agent shall receive an
additional fee therefore in an amount mutually agreed upon by Owner and Agent in
advance of any work to be performed.
(c) Agent shall give Owner written notice of any material defect in the
Property and all parts thereof immediately after ascertainment thereof by Agent,
including without limitation, material defects in the roofs, foundations and
walls of the buildings and in the sewer, water, electrical, structural,
plumbing, heating, ventilation and air conditioning systems; provided, however,
that Agent shall have no obligation to inspect the buildings in order to
discover any such condition.
4.07 LICENSES AND PERMITS. Agent shall, at Owner's expense, obtain and
maintain in the name of Owner all licenses and permits required of Owner or
Agent in connection with the management and operation of the Property. Owner
agrees to execute and deliver any and all applications and other documents to
otherwise cooperate with Agent in applying for, obtaining and maintaining such
licenses and permits.
4.08 COMPLIANCE WITH LAWS. Agent shall, at Owner's expense, comply with all
laws, regulations and requirements for any federal, state or municipal
government having jurisdiction respecting the use or manner of use of the
Property or the maintenance of operation thereof. Agent shall immediately inform
Owner of all notices, summons, suits, fines or violations sent to or served upon
Agent regarding the Property.
4.09 LEGAL PROCEEDINGS.
(a) Agent shall, in Owners name and at Owner's expense, institute any and
all legal and/or administrative actions or proceedings to collect charges, rents
or other income from the Property, to dispossess tenants or other persons in
possession, to cancel or terminate any lease, license or concession agreement
for the breach thereof or default thereunder by the tenant, licensee or
concessionaire.
(b) Any other legal proceeding involving the property including the protest
of increases in taxes and/or assessments levied against the Property, or any
portion thereof shall require prompt notice to and discussion with Owner prior
to any response.
4.10 INVENTORY. The Agent shall maintain a current inventory of all
Personal Property.
4.11 INSURANCE COVERAGE. Owner shall procure and maintain throughout the
term hereof, the following insurance coverages with respect to the Property:
(a) Fire and extended coverage insurance;
(b) Worker's compensation insurance;
(c) Comprehensive public liability insurance for injury or death to persons
and damage to or loss to Property of not less than $2,000,000 / $1,000,000 per
occurrence;
(d) Burglary and theft insurance;
(e) Boiler insurance;
(f) Fidelity Bond or crime coverage of not less than $500,000;
(g) Employment practices liability insurance; and
(h) Such other insurance which Owner shall direct or as Agent shall
reasonably deem appropriate for the protection of Owner and Agent against
claims, losses and liabilities arising out of the operation and improvement of
the Property.
Agent shall, at Owner's request, procure such coverages on behalf of Owner,
at Owner's expense. All such policies of insurance shall name the Owner, Agent
and such other parties as Owner or Agent shall direct as the named insured
thereunder, as their respective interests may appear. Agent shall promptly
investigate and report to the Owner and the insurance company involved all
accidents and claims for damage relating to the ownership, operation and
maintenance of the Property and any damage or destruction to the Property.
4.12 SIGNS. Owner agrees to allow Agent to place one or more signs on or
about the Property stating that Agent is providing management for the Property,
provided that the signs and location thereof shall be subject to Owner's
approval.
4.13 DEBTS OF OWNER. In the performance of its duties as managing Agent of
the Property, Agent shall act as the agent of the Owner. All debts and
liabilities to third persons and Employees of the Property incurred by Agent in
the course of its operation and management of the Property shall be the debts
and liabilities of the Owner only, and Agent shall not be liable for any such
debts or liabilities, except to the extent Agent has exceeded its authority
hereunder.
4.14 ALLOCATION OF COSTS. The parties hereto acknowledge that the Property
may be operated in conjunction with other properties managed by Agent, and
certain costs may be allocated or shared among such properties with such costs
being reimbursed to Agent.
4.15 OTHER DUTIES. Agent may provide other duties such as oversee major
property renovation, new construction or renovation lease up, coordinate
partnership audits, tax returns, bankruptcy filings, loan refinancing, etc. as
requested by Owner for additional fees to be mutually agreed upon by Owner and
Agent.
4.16 EXCLUSIVITY. Agent is not precluded from providing management or other
services to other owners or properties even if such properties might be in
direct competition with the subject Property.
ARTICLE V
Management Fees
---------------
5.01 COMPENSATION OF AGENT. As consideration for the performance by Agent
of all its management obligations under this Agreement, Owner agrees to pay
Agent a management fee each month during the term of this Agreement in an amount
equal to three and one-half percent (3.50%) of Gross Receipts. Said management
fee shall be paid not later than the 10th day of the month following the month
for which such fee is earned. Provided that Agent is not in default under this
Agreement, Agent shall be entitled to pay itself the monthly management fee
herein provided from the Property bank account referred to in Article VI hereof.
In addition, Agent shall charge and collect an accounting/computer fee of three
dollars ($3.00) per unit per month, to be paid in the same manner described
herein.
5.02 REIMBURSEMENT OF AGENT'S EXPENSES. Owner agrees to reimburse Agent
upon demand therefore for any monies that Agent may elect to advance for the
account of Owner. It is expressly understood that Agent is under no obligation
to advance any monies for the account of the Owner. Owner shall further
reimburse Agent for all of Agent's expenses incurred in connection with the
operation of the Property or as a result of Agent's compliance with this
Agreement during the preceding month, including, without limitation copies,
postage, Agent's long distance travel and long distance phone expenses and
expenses relating to the duties set forth in this Agreement.
ARTICLE VI
Procedure for Handling Receipts and Operating Capital
-----------------------------------------------------
6.01 BANK DEPOSITS. Agent shall establish and maintain, at cost of Owner,
separate bank accounts in the name of the Property, as Agent deems appropriate,
into which all monies received by Agent for or on behalf of Owner in connection
with the operation and management of the Property shall be deposited by Agent.
6.02 DISBURSEMENT OF DEPOSITS. Agent shall disburse and pay from the bank
account specified in Section 6.01 hereof, such amounts and at such times as the
same are required in connection with the management and operation of the
Property in accordance with the provision of this Agreement. As requested by
Owner, Agent will disburse to Owner all funds that shall be considered available
as required by HUD and in accordance with any regulatory agreement to which the
Property may be subject.
6.03 AUTHORIZED SIGNATORIES. Designated officers and/or Employees of Agent
shall be the authorized signatories on the bank account established by Agent
pursuant to Section 6.01 hereof and shall have authority to make disbursements
from such account.
ARTICLE VII
Accounting
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7.01 BOOKS AND RECORDS. Agent shall maintain at the central office of
Agent, a comprehensive system of office records, books and accounts pertaining
to the Property, which records, books and accounts shall be kept separate and
apart from all others and shall be available for examination by Owner and its
agents, accountants and attorneys at regular business hours with reasonable
notice. Agent shall preserve all records, books and accounts for a period of
three (3) years.
7.02 PERIODIC STATEMENTS; AUDITS.
(a) On or before fifteen (15) days following the end of each month during
the term of this Agreement, Agent shall deliver or cause to be delivered to
Owner a summary of Gross Receipts and disbursements for the preceding calendar
month and the Fiscal Year to date showing variances from the approved Budget;
(b) Within sixty (60) days after the end of each Fiscal Year, Agent will
deliver or cause to be delivered to Owner, at Owner's expense, an income and
expense statement showing the results of operation of the Property during the
preceding Fiscal Year. At Owner's request, such statement shall be prepared and
audited by a certified public accountant as designated by Owner. At Owner's
request and at Owner's expense, Agent shall prepare, or cause to be prepared,
other financial reports and perform other bookkeeping services in addition to
those provided herein.
7.03 DISCLOSURE. Upon request of the U.S. Department of Housing and Urban
Development ("HUD"), the lender holding the deed of trust secured by the
Property (the "Lender"), or the Owner, Agent will make available, at a
reasonable time and place, its records and records of identity-of-interest
companies which relate to goods and services charged to the project. Records and
information will be sufficient to permit HUD or the Lender to determine the
services performed, the dates the services were performed, the location at which
the services were performed, the time consumed in providing the services, the
charges made for materials, and the per-unit and total charges levied for said
services.
ARTICLE VIII
Indemnification
---------------
8.01 INDEMNIFICATION. Owner agrees to:
a) hold and save Agent harmless from damages as a result of injuries to
person or Property by reason of any cause whatsoever either in and about the
Property or elsewhere when Agent is carrying out the provisions of this
Agreement;
b) reimburse Agent, upon demand, for any money which the Agent is required
to pay for any reason whatsoever in connection with the Property, including
payment for operating expenses, attorneys' fees or costs, fees and judgements in
connection with the defense of any claim, civil or criminal action, proceeding,
charge, or prosecution made, instituted or maintained against Agent or Owner,
jointly or severally, affecting or due to any of the following:
i. the condition or use of the Property;
ii. acts or omissions of Agent, employees or agents of Agent, and
employees of Owner;
iii. claims made by or against any employees of Owner;
iv. claims arising out of or based upon any law, regulation
requirement, contract, or award relating to employment, working conditions,
wages and/or compensation of employees or former employees of Owner; or
v. any other cause in connection with the Property.
c) defend promptly and diligently, at Owner's sole expense, any claim,
action or proceeding in connection with any of the foregoing;
d) hold harmless or fully indemnify Agent from any judgement, loss or
settlement on account thereof, including reasonable attorneys' fees. It is
expressly understood and agreed that the foregoing provisions shall survive the
termination of this Agreement to the extent the cause arose prior to
termination.
8.02 GROSS NEGLIGENCE. Notwithstanding the foregoing, Owner shall not be
required to indemnify Agent against damages suffered as a result of gross
negligence or willful misconduct on the part of Agent, its agents, employees or
employees of Owner.
ARTICLE IX
Miscellaneous Provisions
------------------------
9.01 NOTICES. Any notice or communication hereunder must be in writing, and
shall be personally delivered or mailed by registered or certified mail, return
receipt requested, and if mailed shall be deemed to have been given and received
two (2) days after its mailing. Such notices or communications shall be given to
the parties hereto at their following addresses:
To Agent: VIP Management, LLC,
3111 Paces Mill Road, Suite A-200
Atlanta, Georgia 30339
Attn: Stephanie A. Reed
To Owner: _______________________________
c/o Vinings Holdings, Inc.
3111 Paces Mill Road, Suite A-200
Atlanta, Georgia 30339
Attn: Peter D. Anzo
Any party hereto may at any time by giving ten (10) days written notice to
the other party hereto designate any other address in substitution of the
foregoing address to which such notice or communications shall be given.
9.02 SEVERABILITY. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
held to be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
9.03 ATTORNEYS' FEES. Should either party retain attorneys to enforce any
of the provisions hereof or to protect its interest in any manner arising under
this Agreement, or to recover damages for the breach of this Agreement, each
party agrees to pay its own attorney's fees expended or incurred in connection
therewith.
9.04 TOTAL AGREEMENT. This agreement is a total and complete integration of
any and all representations and agreements existing between Agent and Owner and
supersedes any prior oral or written representations and agreements between
them.
9.05 ARTICLE AND SECTION HEADINGS. Article and section headings contained
in this Agreement are for reference only, and shall not be deemed to have any
substantive effect or to limit or define the provisions contained therein.
9.06 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, however, that Agent shall not have the right to
assign this Agreement without the prior written consent of Owner unless to an
Affiliate.
9.07 GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Georgia.
(The remainder of this page left intentionally blank)
IN WITNESS WHEREOF, this Agreement has been executed in Atlanta, Georgia,
effective as of the date first above written.
OWNER: ____________________________
By: Vinings Holdings, Inc.
General Partner
____________________________
By: Peter D. Anzo
President
AGENT: VIP MANAGEMENT, LLC
___________________________
By: Stephanie A. Reed
Manager