Exhibit 10.1
USP PROPERTY MANAGEMENT AGREEMENT
This Agreement is made and entered into, effective as of July 1, 1981,
by and between USP Real Estate Investment Trust, a common law trust organized
under the laws of the State of Iowa, with its principal place of business at
4333 Edgewood Road N.E., Cedar Rapids, Iowa 52499 (hereinafter referred to as
"Owner") and AEGON USA Realty Management, Inc., with its principal place of
business at 4333 Edgewood Road N.E., Cedar Rapids, Iowa 52499 (hereinafter
referred to as "Manager"). In consideration of the mutual covenants, promises
and agreements herein contained, Owner and Manager do hereby covenant, promise
and agree to and with each other as follows:
WITNESSETH
1. PARTIES AND INTEREST:
Owner is the owner of commercial real property located throughout the
continental United States (hereinafter referred to collectively as the
"Premises"). Manager has the experience and staff necessary and suitable for the
management and operation of real estate properties in the United States and
desires to undertake the management and operation of the real estate properties
of Owner. Manager is an independent contractor and Owner shall have no voice in
the selection or discharge of Manager's servants, representatives, or
sub-contractors, or in their number or in the compensation to be received by
them or in the period of hours of their employment, and no control over the
specific manner in which the work shall be done, but Manager shall be
responsible for the quality of work done and of the materials furnished, and
warrants that they shall conform to the terms of this Agreement.
2. TERM:
Owner does hereby designate Manager the exclusive manager of all of
Owner's real estate interests for the term of one (1) year commencing on the
effective date hereof. This designation shall be automatically renewed annually
on each anniversary of the effective date hereof for an additional one (1) year
period, subject to the right of either party to cancel this Agreement at any
time by giving the other party not less than thirty (30) days written notice of
its intention to so terminate.
3. DUTIES OF MANAGER:
Manager shall serve as an independent contractor, as Owner's sole and
exclusive agent for the management of the Premises. Both parties acknowledge
that certain individual properties owned by Owner are presently operated
pursuant to "net leases" and other similar arrangements with third parties.
These individual properties will not be covered by this Agreement until any such
net leases are terminated, at which time operation of these properties shall be
turned over to Manager pursuant to this Agreement. Owner and Manager agree, upon
the request of either party at any time during the term of this Agreement, to
acknowledge a schedule of properties covered hereby, including the legal
description thereof if desired.
4. SERVICES OF MANAGER:
Subject to such express restrictions or limitations on its authority
and to such written instructions as may from time be imposed or given by Owner,
Manager shall, on behalf and for the account of Owner:
A. Use its best efforts to lease and keep leased to desirable
tenants all space held for lease. Manager shall lease the
Premises with each lease identifying Owner (or the trade name
of the Premises) as the title holder of the Premises and owner
of the lease.
Without the prior approval of Owner, no lease, including
renewal options, shall exceed (i) one year for apartment
leases, (ii) ten years for office or warehouse leases or (iii)
twenty years for shopping center leases. In the event that a
lease contract contemplated to be entered into by Manager in
the name of the Owner is not within the limitations set forth
in the preceding sentence, such lease contract shall be first
subject to the written approval of Owner, which approval shall
not be unreasonably withheld. Manager shall advise Owner
personally or by certified mail of any such proposed lease or
amendment thereto. If Owner fails to advise Manager within ten
(10) days after receipt of such notice, it shall be presumed
that Owner granted Owner's written approval thereto and,
accordingly, Manager shall be authorized to execute such lease
contract in the name of Owner without being in violation of
Manager's duties hereunder. All leases of the Premises shall
remain the property of Owner and, regardless of their terms,
copies shall be promptly provided to Owner. Manager shall have
the right, without prior consent, at Owner's expense, to
repair, alter, modify and improve (as distinguished from
expansion) the existing structures, in connection with any
such lease; prior approval, however, of Owner to be secured by
Manager on all such matters involving costs in excess of
Twenty-Five Thousand Dollars ($25,000.00) for any one item.
Manager may collect from lessees, security deposits as
deposits for the performance under the leases, the amount of
such security deposits to be for such sum as is customary in
the locality of said real estate. Failure by Manager to obtain
any security deposit shall not constitute any nature of
default by Manager hereunder. The security deposits, as
collected, shall be paid over each month to Owner following
the month of collection by Manager.
B. BOOKS AND RECORDS:
The term "Agreement Year" as used herein shall mean the
calendar year ending December 31st each year. The first
Agreement Year shall be the period beginning on the date
hereof and ending on the next December 31st, and the last
Agreement Year shall be the period beginning January 1st of
the last year of the term of this Agreement and ending with
the last day of the term of this Agreement.
Manager shall maintain, in a manner and form consistent with
generally accepted methods of accounting, at its office,
during each Agreement Year and retain such for a period of
three (3) consecutive years thereafter, complete and accurate
general books of account, which will reflect all receipts
derived from the operation of the Premises by
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Manager during such Agreement Year, including but not limited
to, original invoices, sales and other records pertaining to
the business of operating the Premises and other pertinent
papers and documents which will enable Owner to determine the
gross receipts derived by Manager from the Premises. All of
the aforementioned records shall be open to inspection and
audit by Owner or its agents at all reasonable times during
ordinary business hours. On termination of this Agreement, all
records shall be delivered to Owner at the Premises. Owner and
Manager recognize that Owner, itself, may have records
pertaining to the Premises as to which Manager does not have
actual knowledge; and nothing in this paragraph shall be
interpreted to impose any duty on Manager with respect to such
records or any other records of a type which would not be kept
by a reasonably prudent business manager.
Manager shall establish a bank account into which receipts
relating to the Premises of the Owner transmitted to Manager
or collected by Manager shall be deposited. From the funds in
such bank account, Manager shall pay the following types of
expenses associated with operation of the Premises (it being
understood that nothing herein shall be interpreted to impose
on Manager liability for the payment of any such expenses from
Manager's own funds): on-site salary expenses of every kind
and nature, utility charges, custodial service, management
fees hereunder to Manager and all other recurring-type charges
relating to the operation of the Premises (all of the
aforesaid being herein sometimes referred to as "Premises
Operating Expenses"). Manager shall submit to Owner on or
before the tenth (10th) day of each month during the term
hereof (including the tenth (10th) day of the month following
the end of the term) at the place then fixed for the payments
hereunder, a check in a sum equal to all funds in the bank
account for the Premises except a nominal sum to pay
obligations due prior to receipt of additional rentals, and a
written statement, certified by Manager to be true and correct
to the best of his knowledge and belief, showing in reasonably
accurate detail, the amount of aforesaid receipts and the
amount of Premises Operating Expenses disbursed from such bank
account and the resulting difference for the preceding month
accompanied by copies of invoices or statements paid, if
applicable. Manager shall submit to the Owner on or before the
thirtieth (30th) day following the end of each Agreement Year,
at the place then fixed for payments, a complete statement of
the aforesaid annual figures for the preceding Agreement Year
in reasonable detail certified by Manager. Relative to the
authority of Manager to pay from the bank account Premises
Operating Expenses (as hereinabove referred to), such
authority of Manager shall be limited as stated in
subparagraph 4(C) hereof.
C. MAINTENANCE:
(1) Manager shall, at Owner's expense (but subject to the
limitations hereinafter set forth), at all times
during the term of this Agreement, keep the Premises,
both exterior and interior, structural and otherwise,
in good repair, and shall make all repairs and
replacements, both exterior and interior, structural
and otherwise; and Manager shall, at Owner's expense
(subject, however, to the limitations hereinafter set
forth) satisfy each and every obligation, duty or
payment required of the lessor on the leases or any
substitute leases entered into during the term of
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this Agreement. Manager shall also, at Owner's
expense (subject, however, to the limitations
hereinafter set forth), keep the Premises in a clean
condition, free from noxious odors, and shall not
permit or allow any refuse or debris of Manager to
accumulate thereon, or upon the sidewalks, alleys or
streets adjoining the same, and shall remove any
obstruction from the sidewalks adjoining the
Premises. Manager shall exercise reasonable efforts
to see that no article deemed extra hazardous on
account of fire or other dangerous properties, nor
any explosive shall be brought on or into the
Premises, except that this provision shall not apply
to articles usually held for storage in substantially
similar buildings.
(2) The funds of Owner shall be utilized by Manager for
the purpose of fulfilling the foregoing
responsibilities subject, however, to the following
limitations:
(a) Manager is authorized to enter into any
agreement, verbal or written, for
performance of its responsibilities only if
the consideration payable by Owner pursuant
to such agreement is Twenty-Five Thousand
Dollars ($25,000) or less (however, Manager
may enter into such agreements where the
consideration payable pursuant thereto is
more than Twenty-Five Thousand Dollars
($25,000) if, in Manager's sole opinion,
such repairs are necessary to protect the
Premises, fulfill obligations of Owner under
leases or rental agreements or prevent
bodily injury).
(b) If any written contract for the performance
of such responsibilities is in the name of
Owner, then irrespective of the amount
payable pursuant thereto, only an authorized
agent of Owner shall be authorized to
execute any such contract (and for these
purposes Manager shall not be deemed to be
an authorized agent of Owner).
(c) If any contract for the performance of the
aforesaid duties is not cancellable by
Manager on sixty (60) days' notice or less,
then Manager shall not enter into such
contract without the prior written approval
of Owner, notwithstanding that the
consideration payable thereunder may be
Twenty-Five Thousand Dollars ($25,000) or
less. The preceding provisions do not
relate to the contractual authority of
Manager as to signing leases of building
space and such authority shall be restricted
only as specifically provided in paragraph
4(A) hereof.
(d) Notwithstanding Paragraph 4(C)(2)(a), if any
contract for performance of the aforesaid
duties is cancellable by Manager on sixty
(60) days' notice or less, then Manager may
enter into such contract without the prior
written approval of Owner so long as the
maximum consideration payable, upon the
giving of notice of cancellation, does not
exceed Twenty-Five Thousand Dollars
($25,000).
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D. Employees:
Manager shall engage such employees as it deems necessary for
the operation and maintenance of the Premises. Such employees
shall be deemed employees of Manager, or such local agent or
agents as may be retained by Manager and not in the employ of
Owner. Manager, at its expense, shall maintain adequate
fidelity insurance on those of its home office employees who
handle funds or assets of Owner. Owner shall reimburse Manager
for all direct and indirect salary, moving and traveling
expenses of those personnel of Manager performing on-site
property management and maintenance functions, but Manager
shall not be reimbursed for such expenses incurred with
respect to its off-site supervisor and administrative
personnel.
E. Workmen's Compensation:
Manager agrees to provide and Owner agrees to reimburse
Manager for all premiums, contributions and taxes for
Workmen's Compensation insurance, unemployment insurance, and
for old age pensions, annuities and retirements benefits, now
or hereafter imposed by or pursuant to federal and state laws,
which are measured by the wages, salaries or other
remuneration paid to persons employed by Manager in connection
with the performance of the Management Agreement except as
related to personnel of Manager performing property management
functions operating out of the home office of Manager. Manager
agrees to carry Workmen's Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of
the states in which Owner owns real estate to be at all times
in force and Owner agrees to reimburse Manager for the cost
thereof.
F. Code Requirements:
Manager shall use its best efforts to comply with all building
costs, zoning and licensing requirements, and other
requirements of the duly constituted federal, state and local
governmental authorities with respect to the Premises. Manager
may, in its discretion and at Owner's expense, appeal from any
requirement it deems unwarranted and it may compromise or
settle any dispute regarding such requirements.
G. Condemnation Proceedings:
Manager may act on behalf of Owner in any eminent domain
proceedings for the condemnation of the Premises and may, if
Manager deems it advisable, at Owner's expense, employ
independent real estate experts for appraisal and testimony in
connection with any such proceedings. Manager will make
recommendations as to the advisability of compromise or
settlement of any such proceedings.
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H. Real Estate Experts:
Manager may enlist the services of other real estate brokers
or agents in the performance of its duties hereunder to the
extent deemed necessary or appropriate. The expense of the
services will be paid by Owner.
I. Rent Collection:
Use its best efforts to collect rent and other income relating
to the Premises. Manager may, in its discretion, compromise
claims for such rent and other income and, at the expense of
Owner, institute legal proceedings in its own name or in the
name of Owner to collect the same, to oust or dispossess
tenants or others occupying such real estate interests, and
otherwise to enforce the rights of Owner with respect thereto
and in its discretion may compromise or settle such
proceedings.
J. Public Liability Insurance:
Manager, at Owner's expense, shall at all times during the
term of this Agreement carry general liability, accident and
property damage insurance and such other insurance as shall be
carried for the protection of Owner and Manager as
contemplated in this paragraph. Such liability, accident and
property damage insurance shall be to protect Owner and
Manager against any claims for injuries to person or persons
or property arising or growing out of the use of the Premises,
and the amount of liability insurance shall not be less than
the sum of One Hundred Thousand ($100,000) per person and
Three Hundred Thousand ($300,000) per accident, and the amount
of public liability property damage insurance shall not be
less than the sum of Fifty Thousand ($50,000) per accident.
K. Fire Insurance:
Manager, at Owner's expense, at all times during the term of
this Agreement shall carry fire, extended coverage, vandalism
and malicious mischief insurance in an amount equal to not
less than ninety percent (90%) of the replacement value of all
buildings and improvements on the Premises without deduction
for depreciation, in good and solvent insurance companies
authorized to do business in the state and approved by Owner.
All insurance policies shall contain a replacement cost
endorsement and be in the name of Owner as the insured.
L. Rent Insurance:
Manager, at Owner's expense, shall carry rental insurance in
an amount equal to fifty percent (50%) or more of the annual
gross receipts from the lessees of the Premises in good and
solvent insurance companies authorized to do business in the
state and approved by Owner. All such policies shall be in the
name of and made payable to Owner.
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5. COMPENSATION:
Owner hereby agrees to pay Manager compensation in the amount of five
percent (5%) of gross income derived from the operation of the Premises. "Gross
Income" shall mean any and all income from the Premises including: rents,
percentage rents, overage rents, expense participation rents and all rents or
payment from tenants of any nature, income from services rendered to tenants
(i.e., maid service, janitorial or cleaning service, trash collection, elevator
service, etc.), and all income from concessions of any kind, including all
coin-operated facilities on the Premises. Also included in gross income shall be
any amounts collected in lieu of the above-enumerated items such as forfeited
security deposits and judgments or awards collected in the enforcement of any
lease or rental agreement. In addition, Manager shall be entitled to
reimbursement of expenses incurred by Manager in attending meetings at the
request of Owner.
6. LIABILITY OF MANAGER:
Manager will give Owner the benefit of its best judgment and efforts in
rendering the foregoing services to Owner. Manager shall not be liable for any
act or omission whatsoever of any agent or representative, or for Manager's
negligence or error in judgment except its willful misfeasance, bad faith or
gross negligence in the conduct of its duties; and Owner shall indemnify and
save harmless Manager from and against any and all liabilities, claims and
damages, costs and expenses (including reasonable attorney's fees) to which
Manager may become subject by reason or arising out of the performance or
non-performance of its duties as Manager; provided, however, that no such return
will be made of damages, costs or expenses which may be incurred by Manager by
reason of its willful misfeasance, bad faith or gross negligence in the conduct
of its duties. The foregoing provisions of this paragraph shall survive the
termination of this Agreement, but this shall not be construed to mean that
Owner's liabilities or obligations hereunder do not survive as to the other
provisions of this Agreement.
7. STATUS OF TRUST:
In the event that the terms of this Agreement at any time shall, in the
opinion of the counsel for Owner, impair the status of Owner as a "Real Estate
Investment Trust" within the meaning of Part II, subcharacter M of the Internal
Revenue Code of 1954, as now enacted or hereafter amended, the parties shall,
within 30 days after Owner shall have given to Manager written notice of such
impairment, negotiate such amendments as may be necessary to restore, in the
opinion of counsel for Owner, such status of Owner.
8. MECHANIC'S LIENS:
Manager shall not have nor shall anyone claiming by, through or under
Manager have the right to file or place any mechanic's liens or other lien of
any kind or character whatsoever upon the Premises, or upon the interest of
Manager therein, and notice is hereby given that no contractor, subcontractor or
anyone else who may furnish any material, service or labor for any building,
improvements, alternations, repairs or any part thereof shall at any time be or
become entitled to any lien thereon.
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9. CONFORMITY OF LAW:
Manager covenants, with respect to the Premises, fixtures and
appurtenances, that at Owner's expense (subject to the limitations on Manager's
contractual authority as herein set forth), Manager shall use due diligence to
cause them to conform to every applicable requirement of law or duly constituted
authority, and to the applicable requirements of all carriers of insurance on
the Premises, any Board of Underwriters, Rating Bureau or similar organization
including, but not limited to, requirements pertaining to the health, welfare or
safety of employees or the public, such as adequate toilet facilities, fire
exits, exit signs, safe electrical wiring and elevators. Manager shall, at
Owner's cost and expense (but subject to the herein set forth limitations on
Manager's contractual authority), make such improvements or installations as may
be necessary to satisfy this requirement and shall, at all times during the
term, promptly comply with all such requirements whether now or hereafter in
effect and whether now or hereafter applicable for any reason whatsoever.
Anything contained herein to the contrary notwithstanding, should Manager use
the Premises for any purpose other than the purposes as are normally incidental
to such uses, or should Manager permit any area of the Premises to remain vacant
while they are usable for such purposes, Manager shall, at Owner's expense (but
subject to the herein set forth limitations of Manager's contractual authority),
cause the Premises to conform to any additional requirements of law, duly
constituted authorities, carriers of insurance on the Premises and any Rating
Bureau, Board of Underwriters or similar organization applicable to the Premises
solely because of such other use, or such non-use of the Premises.
10. STATE AND LOCAL LAW:
Manager shall use due diligence to prevent the Premises from being used
for any unlawful purpose and shall at all times comply with the laws and the
rules and regulations of the applicable governmental bodies and fire inspection
and rating bureaus relating to the use of the Premises, including sidewalks,
alleys and streets adjoining, the cost and expense of such compliance to be the
responsibility of Owner (but Manager's contractual authority with respect
thereto shall be limited as herein set forth).
11. INSURANCE CLAIMS:
Manager shall settle and adjust any claims against any insurance
company under the fire or extended coverage policies of insurance as described
in paragraph 4(K) hereof, but before making final settlement of all claims over
Ten Thousand Dollars ($10,000), the written approval of Owner shall be had.
12. SUBORDINATION:
Owner and Manager agree that this Agreement is and shall be
subordinated to any mortgages or trust deeds held by or for any bank, insurance
company, seller or other lending institution that may be now on or hereafter
placed upon the Premises, and to any and all advances to be made thereunder, and
to the interests thereon and all renewals, replacements and extensions thereof.
The preceding sentence shall not be interpreted to enlarge the duties of Manager
hereunder or to diminish the rights of Manager hereunder, the sole purpose of
the preceding sentence being to indicate the agreement of Owner and Manager that
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foreclosure of any such mortgage or trust deed shall terminate this Management
Agreement (but shall not release the then accrued obligations of the parties
hereunder).
13. CONDEMNATION:
In the event of any condemnation or taking, all damages shall be the
exclusive property of Owner, provided, however, Manager shall be entitled to any
proceeds recovered by Manager in its own right on account of any and all damage
to Manager's business by reason of condemnation.
14. INDEMNIFICATION:
If either party shall default, the successful party shall be reimbursed
by the other for all costs and expenses incurred in the enforcement of any of
the provisions of this Agreement, including reasonable attorney's fees.
15. REPRESENTATIONS:
The following covenants, representations, warranties and restrictions
are made by Manager:
A. Manager will not assign, sell or otherwise dispose of or
permit any other person to acquire any title to its interest
in this Agreement.
B. Manager will not directly or indirectly create, assume, incur
or suffer to exist any mortgage, pledge, encumbrance, lien or
charge of any kind upon this Agreement or upon any income or
fees therefrom except as provided in this Agreement.
16. NOTICE:
Whenever, under the terms of this Agreement, any notice is required to
be served upon the other party, said notice shall be served upon the other party
by personal service or by sending said notice by certified mail to the other
party. Notice to each party shall be in writing, and until further notification
in writing, shall be mailed as follows:
Notice to Owner shall be mailed as follows:
USP Real Estate Investment Trust
4333 Edgewood Road N.E.
Cedar Rapids, Iowa 52499
Notice to Manager shall be mailed as follows:
AEGON USA Realty Management, Inc.\
4333 Edgewood Road N.E.
Cedar Rapids, Iowa 52499
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17. CUMULATIVE RIGHTS:
The various rights, powers, objects, elections and remedies of Owner
and Manager provided in this Agreement shall be construed as cumulative and no
one of them is exclusive of the others or exclusive of any rights or remedies
allowed Owner and Manager by law.
18. CONSENT:
Owner and Manager shall not unreasonably withhold their consent
whenever such consent shall be required under the terms of this Agreement.
19. PARAGRAPH HEADINGS:
The paragraph headings contained herein are inserted only as a matter
of convenience and for reference and in no way define, limit or describe the
scope or intent of this Agreement or in any way affect the terms and provisions
hereof.
20. RULES OF CONSTRUCTION:
Where necessary herein, the terms "Owner" and "Manager" shall apply to
the plural or the agents or employees of Owner, or Manager, and all terms used
in the singular or in the masculine shall apply to the plural or to the feminine
or neuter gender.
21. AMENDMENTS:
This Agreement may be amended only by the mutual consent of the
parties. However, no such amendment shall become effective unless it be reduced
to an instrument in writing specifically referring to this Agreement, is signed
by both parties and dated.
22. SUCCESSORS AND ASSIGNS:
The provisions of this Agreement shall apply to and bind the immediate
parties and the heirs, executors, administrators, successors and assigns of the
respective parties. Owner may assign this Agreement without the consent of
Manager, however, Manager may only assign this Agreement with the prior written
consent of Owner. Until such time, however, as Manager has received written
notice from Owner of the party to which Owner has assigned this Agreement,
Manager shall continue to tender performance hereunder to Owner as herein
provided. This Agreement supersedes any and all prior agreements or
understandings, oral or written, by and between the parties hereto relating to
leasing or managing the Premises.
23. TRUST:
It is understood and agreed by the parties hereto:
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A. That Owner is a common law trust organized under the laws of
the State of Iowa pursuant to a Declaration of Trust dated
October 5, 1972, as amended, and recorded in the Office of the
Recorder of Linn County, Iowa.
B. That the holders of shares of beneficial interest in
Owner shall not be personally liable hereon, and,
C. That the other party hereto shall look solely to the funds and
property of Owner for the payment of any claim arising
hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
OWNER: MANAGER:
USP REAL ESTATE INVESTMENT TRUST AEGON USA REALTY MANAGEMENT, INC.
By: /s/ Patrick E. Falconio By: /s/ Dennis Roland
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Patrick E. Falconio Dennis Roland, President
Chairman of the Board of Trustees
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