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EXHIBIT 10.14
PROPERTY MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT ("Agreement") is effective as of November 5,
1999, between Corporate Enterprise, Inc, a California corporation ("Owner") and
William Lyon Homes, Inc., a California corporation ("Manager").
RECITALS
1. Owner is the record owner of directly, or holds a majority and
controlling interest in the record owner of, certain real properties described
on SCHEDULE A attached hereto (a "Property" or the "Properties").
2. Owner desires to engage Manager to manage, develop, market and
operate the Properties.
AGREEMENT
NOW, THEREFORE, in consideration of their promises herein, Owner and
Manager agree as follows:
ARTICLE 1. PROPERTIES
1.1. PROPERTIES. The Properties are listed, described and identified on
SCHEDULE A. SCHEDULE A describes the nature of the rights of Owner with respect
to each Property, whether as the owner or otherwise. and also sets forth the
Management Fee payable (in accordance with Article 12) to the Manager with
respect to each Property.
1.2. TERMINATION ON SALE. At Manager's option, this Agreement shall
terminate automatically and immediately as to any Property upon (i) the sale
thereof by Owner, (ii) termination of Owner's rights in such Property, or (iii)
the judicial or non-judicial foreclosure of a lien encumbering such Property. In
the event of termination, Manager shall be entitled to receive a pro-rata
portion of the Management Fee earned by Manager in fulfilling its duties
hereunder less any payments made prior to the date of termination of this
Agreement.
1.3. ENGAGEMENT. Owner hereby engages Manager as property manager to
render all usual and customary property and project management services
necessary or incidental to the management and development of the Properties and
the related financial affairs of Owner, all as more fully described herein, and
Manager hereby accepts such engagement. In this connection, Manager hereby
represents to Owner that Manager is generally familiar with the business of
developing residential real property and managing such property and has reviewed
and is familiar with Owner's business, the Business Plan (described herein), and
the Properties.
1.4. COMPENSATION. In addition to the reimbursement of costs as
provided in Section 8 of this Agreement, Manager shall be paid by Owner a
management fee of three per cent (3%) of the gross sales.
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ARTICLE 2. COMMENCEMENT DATE; TERM
Manager's duties and responsibilities under this Agreement shall begin
on (a) if Owner has not yet acquired direct title to the Properties or a
majority or controlling interest in the entity that will acquire the Properties,
the date that Owner acquires title to the Properties, or (b) if Owner has
already acquired title to the Properties or a majority or controlling interest
in the entity that owns the Property, the date first set forth above. Manager's
duties and responsibilities under this Agreement shall continue until terminated
as provided herein.
ARTICLE 3. MANAGER'S RESPONSIBILITIES
3.1. MANAGEMENT. Manager shall manage, develop, operate and maintain
the Properties in an efficient and professional manner. Manager shall act in a
fiduciary capacity with respect to the proper protection of and accounting for
Owner's assets covered by this Agreement. In this capacity, Manager shall deal
at arms length with all third parties and Manager shall serve Owner's interests
at all times.
3.2. INDEPENDENT CONTRACTOR. This Agreement is not one of agency by
Manager for Owner but one by which Manager shall be engaged independently, for
the business of managing properties on its own behalf, as an independent
contractor. All employment arrangements are therefore solely its concern and
Owner shall have no liability with respect thereto. Notwithstanding Manager's
status as an independent contractor, Manager shall be agent of Owner for the
limited purpose of entering into certain contracts which this Agreement provides
shall be in the name of Owner.
3.3. PERSONNEL. Manager shall have in its employment at all times a
sufficient number of qualified employees to enable it to professionally,
adequately, safely and efficiently manage, operate, maintain, and account for
each Property. All matters pertaining to the employment, supervision,
compensation, promotion and discharge of such employees are the responsibility
of Manager, which is in all respects the employer of such employees. 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. Manager
represents that it is and will continue to be an equal opportunity employer in
compliance with all applicable employment laws.
Manager shall provide on-site personnel who shall be engaged in the
direct development or management of each Property subject to this Agreement
("On-Site Personnel"). On-Site Personnel include, but are not limited to,
superintendents, assistant superintendents, laborers, sales personnel,
hosts/hostesses, and customer service personnel and others who work "on-site" at
a Property or primarily spend their time in the field at one or more of the
Properties.
Manager shall also provide and retain sufficient additional personnel
to manage the Properties and Owner's related financial affairs at one or more
off-site locations where Manager may maintain offices ("Off-Site Personnel").
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3.4. COMPLIANCE WITH LAWS. Manager shall be responsible for full
compliance with federal, state and municipal laws, ordinances, regulations and
orders relative to each Property. Manager shall promptly remedy any violation of
any such law, ordinance, rule, regulation or order which comes to its attention.
Expenses incurred because of Manager's gross negligence or willful misconduct
will not be reimbursed from an Operating Account (as hereinafter defined).
Manager shall be responsible for assisting Owner to be in full
compliance with all terms and conditions contained in any loan agreement,
mortgage, deed of trust or other security instruments affecting a Property,
provided, however, Manager shall not be required to make any payment or incur
any liability on account thereof.
3.5. MANAGER'S DUTIES. Subject to Owner's approval, Manager will
supervise and oversee;
(a) Negotiation with lenders and other sources of capital and
financing, and the providing of information to such lenders during negotiation
and following loan origination.
(b) Financial reporting necessary to comply with applicable
ownership and loan agreements, including annual and quarterly reports and the
maintenance of adequate accounting and computer software systems and related
services in connection therewith.
(c) Analysis and preparation of business plans and operating
projections and budgets, as required by all loan agreements of Owner and by
Sections 3.6 and 3.7 below.
(d) At Owner's expense, acquisition and maintenance of all
completion bonds and/or other surety bonds (collectively "Bonds") reasonably and
customarily required by lenders, public entities or other interested parties in
connection with the construction of improvements on the Buildout Properties, or
required by any loan agreement between Owner and its lenders. The acquisition
and maintenance of any bonds shall be in the name of Owner when possible, but
may be in the name of Manager if certain requirements for obtaining such bonds
disqualify Owner from obtaining them in its own name. In the event Manager must
obtain a Bond for Owner under Manager's name, Manager shall provide a copy or
description of such Bond to Owner.
(e) Preparation of tax projections and compliance with
requirements of relevant taxing authorities, including employment of outside
accountants, legal counsel, and tax consultants.
(f) Maintenance of financial controls and compliance with
applicable financial reporting requirements.
(g) Management and reporting of the accounts payable of Owner.
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(h) Submission of loan draw requests and disbursement of loan
ftinds under loan agreements or any other credit arrangement of Owner.
3.6. BUSINESS PLAN. At such time as Owner shall request, Manager shall
prepare a "Business Plan" for each Property or Project, setting forth Manager's
assessments, goals, projections and other data with respect to the Property or
any Project.
3.7. APPROVED BUDGETS. Based on the appropriate Business Plan and other
criteria provided by Owner or deemed relevant by Manager, Manager shall prepare
and submit to Owner a proposed budget ("Budget") for the promotion, operation,
development and buildout, sale and disposition, and repair and maintenance of
each Property or Project for the calendar year beginning with the date the
Business Plan is first requested.
The Owner will consider the proposed Budgets and then will consult with
Manager in order to agree on an "Approved Budget" for each Property or Project.
Each Approved Budget agreed to by Owner and Manager will be dated and signed to
indicate its having been approved.
Manager will employ all reasonable efforts to ensure that the actual
costs of developing, maintaining and operating each Property or Project shall
not exceed the approved Budget pertaining thereto either in total or in any one
accounting category. All expenses must be charged to the proper account as
specified in the Approved Budget for the Property or Project and no expense may
be classified or reclassified for the purpose of avoiding an excess in an
Approved Budget specified amount for an accounting category. Manager shall
secure Owner's prior written approval for any expenditure that will result in an
increase in that item in the Approved Budget by more than five percent (5%) or
such other amount as Owner and Manager may specify from time to time.
As early as possible, Manager shall inform Owner of any major increases
in costs and expenses that were not foreseen during the budgeting process period
and thus were not reflected in an Approved Budget.
3.8. REVENUES. In accordance with each Business Plan, Manager shall use
diligent efforts to market and sell homes, lots or other units.
3.9. LITIGATION. Manager shall have no authority to commence a lawsuit
against a homebuyer, subcontractor, material provider or any other party without
Owner's consent.
3.10. COMPETITIVE PRICING. Manager shall make every reasonable effort
to obtain competitive market pricing from all subcontractors and suppliers for
repairs, capital improvements, goods and services.
3.11. REPAIRS; WARRANTIES. Manager shall attend to the making and
supervision of all warranty, ordinary and extraordinary repairs, decorations and
alterations subject to the limits of the approved Operating Budget (defined
below) for the applicable Property.
3.12. THIRD PARTY CONTRACTS. Manager shall not enter into any contract
for developing, maintaining, repairing or servicing any Property or any of the
constituent parts
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of any Property that is not specified in an Approved Budget without Owner's
prior consent. As a condition to obtaining such consent, if requested, Manager
shall supply Owner with a copy of the proposed contract and shall state to Owner
the relationship, if any, between Manager (or the person or persons in control
of Manager) and the party proposed to supply such goods or services, or both.
Except as expressly stated otherwise in this Agreement, all third party
contracts shall: (a) be in the name of Manager, (b) be assignable, at Owner's
option, to Owner or Owner's nominee, (c) if appropriate, include a provision for
cancellation thereof without penalty by Owner or Manager upon thirty (30) days
written notice, (d) shall require the contract provider to deliver appropriate
lien releases in accordance with Section 3262 of the California Civil Code upon
payment or as otherwise reasonably required by Owner or Manager following
partial payment, and (e) shall require that all contractors provide evidence of
sufficient insurance.
3.13. TAXES, MORTGAGES. 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 each Property and recommend
payment or appeal as it may decide in its reasonable judgment. Provided Owner
has the funds, Manager shall pay such bills before delinquency and shall forward
proof of payment to Owner.
3.14. ADVERTISING. Manager shall prepare or cause to be prepared
advertising plans and promotional material to be used to market homes, lots or
other units within a Property or Project. Such plans or advertising material
shall only be used if approved in advance by Owner, and in conformance with such
approval. Advertising and promotional material shall be prepared in full
compliance with federal, state and municipal laws, ordinances, regulations and
orders.
3.15. DEVELOPMENT AND BUILDOUT. Manager's duties and responsibilities
with respect to Buildout Properties shall include, but not be limited to, the
following:
(a) Acting as a construction manager in the supervision and
management of development and construction, including:
(i) assisting Owner in the preparation of building, grading,
landscape, street improvement and utility plans for any Buildout
Property or Project;
(ii) Coordination of development and construction under
contracts between Owner and others as subcontractors within the
parameters of Approved Budgets;
(iii) monitoring all Approved Budgets and other construction
budgets and cost accounting;
(iv) obtaining necessary building permits and other
governmental approvals;
(v) obtaining necessary bonds, set asides or other security
required by governmental agencies;
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(vi) preparation and submission of loan draw requests and
payment and disbursement of loan draw funds, on behalf of Owner, with
respect to all draws, fees and progress payments to contractors,
suppliers and other providers of construction services or materials and
the receipt of appropriate mechanics' and materialman's lien, releases
and other releases;
(vii) coordination of inspections;
(viii) obtaining certificates of occupancy; and
(ix) managing warranty work and punch list items.
(b) Marketing of units or lots within a Property, including:
(i) acting as a real estate broker or engaging the services of
real estate brokers to sell units or lots or other portions of each
Property at commission rates established by Owner and Manager from time
to time;
(ii) preparing all advertising and promotional materials and
constructing and decorating model homes or units;
(iii) assisting Owner in the setting of sales prices for
units, homes, lots or other portions of each Property; and
(iv) processing all escrows for sales of units, homes, lots or
other portions of each Property, the collecting and distribution to
Owner of all net sales proceeds, after payment of lender required
release prices, closing costs, the Management Fee and other amounts due
or payable.
(c) Payment from funds of all debt service, and all other
invoices, bills and obligations relating to a Property.
(d) Without being responsible for any amounts due thereunder,
assisting Owner in the compliance with all loan agreements with the lender(s) of
Owner and related loan and security documents entered into or assumed by Owner
applicable to the Properties, including, without limitation, compliance with all
loan disbursement requirements and conditions.
ARTICLE 4. INSURANCE
4.1. OWNER'S INSURANCE OBLIGATIONS.
(a) Owner, at its expense, will obtain and keep in force adequate
insurance against physical damage (e.g., fire with extended coverage
endorsement, boiler
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and machines, etc.) and, a) Comprehensive General Liability with Combined Single
Limit Bodily injury/ Property Damage per occurrence $1,000,000 or b) Commercial
General Liability with the following limits i) each Occurrence Limit $1,000,000
ii) Personal Advertising Injury Limit$1,000,000 iii) Products Completed
Operations Aggregate Limit $1,000,000 iv) General Aggregate Limit (Other than
Products-Completed Operations) $1,000,000.
(b) Both policy forms must include: i) Premises and operations
with no x, c or u exclusions, ii) Products and completed operations coverage,
iii) Blanket Contractual coverage with Employee Exclusion deleted, iv) Broad
Form Property Damage including completed operations or its equivalent, v) An
endorsement naming Manager as additional insured, vi) an endorsement stating:
"Such Coverage as is afforded by this policy for the benefit of the additional
insured is primary and any other coverage maintained by such additional insured
shall be non-contributing with the coverage provided under the policy," and vii)
coverage on an "occurrence" form.
(c) Owner agrees to maintain this coverage for a minimum of one
(1) year following completion of the Projects and to continue to name Manager as
Additional Insured(s) for the entire one (1) year period.
(d) Other Requirements.
(i) All policies must contain an endorsement affording an
unqualified thirty (30) days notice of cancellation to the Manager in
the event of cancellation of coverage.
(ii) Certificates of Insurance with the required endorsements
evidencing the coverage must be delivered to the Manager prior to
commencement of any services under this Agreement.
(iii) If the Owner fails to secure and maintain the insurance
required in Section 4.1 of this Agreement, Manager shall have the right
(without any obligation to do so, however) to secure same in the name
and for the account of the Owner in which event the Owner shall pay the
costs thereof and furnish upon demand all information that may be
required in connection therewith. If Owner fails to secure and maintain
the insurance required in Section 4.1 of this Agreement, the Manager
shall be entitled to terminate this Agreement with twenty four (24)
hours notice.
4.2. ADDITIONAL INSURANCE REQUIREMENTS Manager agrees to:
(a) notify Owner and the insurance carrier within the time period
required by any policy (and in any case Manager shall promptly notify Owner)
after Manager receives notice of any such loss, damage or injury;
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(b) take no action which might bar Owner from obtaining any
protection afforded by any policy Owner may hold or which might prejudice Owner
in its defense to a claim based on such loss, damage or injury; and
(c) give Owner the exclusive right, as between Manager and Owner at
its option, to conduct the defense to any claim, demand or suit within limits
prescribed by the policy or policies or insurance.
Manager shall furnish whatever information is required by Owner for the
purpose of establishing the placement of insurance coverages and shall aid and
cooperate in every reasonable way with respect to such insurance and any loss
hereunder. If available, Owner shall include in its hazard policy covering each
Property, personal property, fixtures and equipment located thereon, and Manager
shall include in any fire policies for its furniture, furnishing or fixtures
situated at each Property, appropriate clauses pursuant to which the respective
insurance carriers shall waive all rights of subrogation with respect to losses
payable under such policies.
4.3. ADDITIONAL INSURANCE. Manager must furnish a certificate
evidencing workers' compensation insurance in a form acceptable to Owner. The
workers' compensation insurance certificate shall have attached thereto an
endorsement that Owner will be given at least thirty (30) days prior written
notice of cancellation of or any material change in such policy. Owner will not
reimburse Manager for Manager's cost of any such insurance specified in this
Section 4.4, or for any and all coverages that Manager obtains for its own
account.
4.4. SUBCONTRACTOR'S INSURANCE. Manager shall require that all
subcontractors that enter a Property have insurance coverage at the
subcontractor's expense, in the following minimum amounts (subject to changes as
Owner may from time to time require):
(a) Workers' Compensation - Statutory Amount
(b) Employer's Liability (in those states where it is required) -
Statutory Amount
(c) Comprehensive General Liability
(i) $1,000,000 Bodily Injury per person $1,000,000 Per
occurrence, and $500,000 Property Damage
or
(ii) $1,000,000 Combined Single Limit
Manager must obtain the Owner's permission to waive any of the above
requirements. Limits and amounts shall be as designated in an Approved Budget or
by Owner from time to time. Manager shall obtain and keep on file certificates
of insurance evidencing the compliance by subcontractors of the foregoing
requirements.
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4.5. INDEMNITY. At Owner's sole expense, Owner (to the fullest extent
permitted by applicable law) shall indemnify, hold harmless, protect, and at the
Manager's request (and through legal counsel acceptable to the Manager) shall
defend the Manager and each of its officers, directors, affiliates, employees,
representatives and agents, from and against any and all legal proceedings,
judgments, claims, losses, damages, costs and expenses, including reasonable
attorneys' fees, of whatever kind or character ("Claims"), including without
limitation Claims related to or arising from the death or bodily injury to
persons or injury or damage to any property, including the loss of use thereof,
arising from, in whole or in part, the performance of this Agreement by Manager,
its officers, directors, affiliates, employees, representatives and agents,
except for Claims arising solely our of Manager's wilful misconduct or gross
negligence.
ARTICLE 5. FINANCIAL REPORTING AND RECORDKEEPING
5.1. BOOKS OF ACCOUNTS. Manager, in the conduct of its responsibilities
to Owner, shall maintain on behalf of Owner adequate and separate books and
records for each Property or Project, as appropriate or as directed by Owner,
the entries to which shall be supported by sufficient documentation to ascertain
that said entries are properly and accurately recorded as to each Property. Such
books and records shall be maintained by manager at Manager's address stated in
Section 14 or at such other location as may be mutually agreed upon in writing.
Such books and records shall be the property of Owner. Manager shall ensure such
control over accounting and financial transactions as is reasonably required to
protect Owner's assets from theft, error or fraudulent activity on the part of
Manager's employees or other agents.
5.2. ACCOUNT CLASSIFICATION. If requested by Owner, Manager shall adopt
or use Owner's accounts, classifications or accounting program.
5.3. FINAL REPORTS. Manager shall furnish monthly reports of all
transactions occurring in each calendar month by the tenth (10th) day of the
next calendar month. The reports will show all costs and receipts, and other
matters pertaining to the development, management, operation, and maintenance of
each Property during such month. The reports shall include unit, home or lot
sales reports, profit and loss statements, balance sheets, schedules of
delinquencies of uncollectible items, and construction status updates.
5.4. SUPPORTING DOCUMENTATION. As additional support to the monthly
financial report, Manager shall provide copies of the following:
(a) All bank statements, bank deposit slips and bank
reconciliations,
(b) Detailed cash receipts and disbursement records,
(c) Detailed trail balance (if available),
(d) General ledger listing (Owner may periodically request copies
of all invoices paid during a specific period),
(e) All invoices for capital expenditures and non-recurring items,
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(f) Summaries of adjusting journal entries,
(g) Summaries of home, unit, lot or other sales closed and in
escrow, and
(h) Supporting documentation for payroll, payroll taxes and
employee benefits.
5.5. ACCOUNTS. Manager shall comply with all material agreements to
which Owner is a party with respect to the establishment and maintenance of all
accounts and funds relating to the Properties. The schedule for the transfer of
funds and the balance permitted to remain in each Operating Account (defined
below) may be changed from time to time by written instructions from the Owner.
If separate bank accounts are maintained for each Property, Owner shall issue
separate instructions for the transfer of funds for each account for a Property.
Checks or remittances due Owner should be delivered to Owner,
independent of required financial reports, in the most expeditious manner
possible as directed by Owner. At the option of the Owner, any remittance to
Owner shall be the net of the Manager's fee. In any event, checks or payment for
the Management Fee shall be delivered, no earlier than the fifteenth (15th) of
the calendar month and no later than the twenty-fifth (25th) of each calendar
month.
5.6. ACCOUNTING PRINCIPLES. All financial statements and reports
required by Owner will be prepared in accordance with generally accepted
accounting principles with the exception that, unless Owner specifies otherwise,
the statements will be prepared on a cash basis.
ARTICLE 6. OWNER'S RIGHT TO AUDIT
6.1. RIGHT TO CONDUCT AUDIT. Owner reserves the right for Owner's
employees, or others appointed by Owner, to conduct examinations, 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 Property or at any office of Manager provided such audit tests are
related to those activities performed by Manager for Owner.
6.2. DISCREPANCY CORRECTION. If, during the course of any audit, Owner
or its employees or appointees discover weaknesses in internal control or errors
in record keeping, Manager shall correct such discrepancies either upon delivery
or within a reasonable period of time. Manager shall inform Owner of the action
taken to correct such audit discrepancies.
6.3. AUDIT COSTS. Any and all audits conducted, whether by Owner or its
employees or appointees, will be at the sole expense of Owner, unless such audit
shall disclose a discrepancy of greater than five percent (5%) or a breach by
Manager of any of its obligation under this Agreement in any material respect,
in which case such audit shall be at Manager's expense.
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ARTICLE 7. BANK ACCOUNTS
Manager shall deposit all sales proceeds, rents and other funds
collected from the operation of each Property or Project, in a bank approved by
Owner (each an "Operating Account"), as designated by Owner from time to time.
Out of each account, Manager shall pay the operating expenses of the respective
Property and any other payments relative to the Property as required by the
terms of this Agreement. If more than one account is required to operate a
Property, each account must have a unique name.
ARTICLE 8.
8.1. NON-REIMBURSABLE COSTS. The following expenses or costs incurred
by or on behalf of Manager in connection with the management and leasing of any
particular Property shall be at the sole cost and expense of Manager and shall
not be reimbursed by Owner:
(a) General accounting and reporting services which are considered
to be within the reasonable scope of Manager's responsibility to Owner.
(b) Political or charitable contributions, except that certain
charitable contributions may be made after prior consent by Owner.
(c) Cost attributable to losses arising from gross negligence,
willful misconduct or fraud on the part of Manager, or Manager's associates,
agents, affiliates or employees.
(d) Training expenses.
(e) Employment fees unless specifically approved by Owner.
(f) Costs or advances made to employees and costs of travel by
Manager's employees or agents to and from each Property.
(g) Cost of fidelity bonds purchased by Manager for its own
account.
8.2. SEGREGATION OF ACCOUNTS. Manager shall segregate the income and
expenses of each Property so that cash and gross income from each Property as
set forth in SCHEDULE B or will be applied only to the bills and charges from
that Property.
ARTICLE 9. SALE OF PROPERTY
9.1. MANAGER MARKETING. Manager shall be entitled to market and receive
a commission or other compensation upon the sale of any Property if authorized
under the Business Plan or Approved Budget or if authorized under SCHEDULE B
attached hereto.
9.2. COOPERATION WITH OUTSIDE SALES BROKER. If Owner executes a listing
agreement with a broker (other than Manager) for sale of any of the Properties,
Manager
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shall cooperate with such broker to the end that the respective activities of
Manager and broker may be carried on without interference with tenants and
occupants. Manager will the broker to exhibit any particular Property during
reasonable business hours provided the broker has secured the Manager's
permission in advance. Any Owner's instruction that Manager shall pay brokerage
commissions to a listing or other broker that Owner hires shall not reduce or
impair the Management Fees due Manager hereunder.
ARTICLE 10. COOPERATION
If any claims, demands, suits or other legal proceedings be made or
instituted by any person against Owner or the record title holder of any
Property which arise out of any of the matters relating to this Agreement,
Manager shall give Owner all pertinent information and reasonable assistance in
the defense or other disposition thereof.
ARTICLE 11. TERMINATION
11.1. TERMINATION FOR CAUSE ON 90-DAY NOTICE. In addition to the
provisions of Section 1.2, either party may terminate this Agreement for cause
by giving the other party at least ninety (90) days notice in writing specifying
the cause therefore.
11.2. IMMEDIATE TERMINATION WITH NOTICE. In addition to the provisions
of Section 13.1, if Manager's continued performance immediately and irreparably
endangers or threatens the value of the Properties or Owner's rights and
interests therein, Owner may immediately terminate this Agreement immediately
upon written notice to that effect on the Manager. In such case, if Manager is
entitled to any Management Fees pursuant to Article 12 or other compensation.
11.3. TERMINATION WITHOUT NOTICE. Owner may immediately terminate this
Agreement upon written notice to Manager, upon the occurrence of (a) the
dissolution or termination of the corporate existence of Manager by merger,
consolidation or otherwise; (b) the termination or suspension of Manager's real
estate brokerage license or general contractor's license, if such licenses are
required as conditions to developing and managing any Properties; or (c) the
cessation on Manager's part to continue to do business.
11.4. FINAL ACCOUNTING. Upon termination of this Agreement for any
reason or upon termination as to any Property for any reason, Manager shall
deliver to Owner upon Owner's written request the following items with respect
to each Property or with respect to the Property so terminated, as the case may
be:
(a) A final accounting, reflecting the balance of income and
expenses on each such Property as of the date of termination to be delivered
within thirty (30) days after such termination.
(b) Any balance or monies belonging to Owner, or security
deposits, or other funds, held by Manager with respect to each Property.
(c) All original records, reports, contracts, leases, plans,
specifications, receipts for deposits, unpaid bills and other papers or
documents which pertain to each
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Property, for which, upon such termination, Owner will assume responsibility for
payment of all approved or authorized unpaid bills.
(d) All materials and supplies, keys, contracts and documents, and
such other accounting, papers and records pertaining to this Agreement as Owner
shall request.
(e) Confirmation of the assignment to Owner of any and all rights
Manager may have in and to any existing contracts, licenses, permits, project
names and trademarks relating to the operation and maintenance of the Property
as Owner shall require.
ARTICLE 12. ASSIGNMENT; APPROVALS
12.1. NO ASSIGNMENT. This Agreement and all rights and obligations
hereunder, shall not be assignable by either party hereto (except as may be
required by a surety company in a matter of subrogation); provided, however,
that Owner may assign this Agreement to any lender who has made loan secured by
a Property.
12.2. CONSENT AND APPROVALS. Owner's consents or approvals may be given
only by authorized representative of Owner from time to time designated by
Owner.
ARTICLE 13. MISCELLANEOUS
13.1. PRONOUNS. The pronouns used in the Agreement referring to Manager
shall be understood and construed to apply whether Manager be an individual,
co-partnership, corporation or an individual or individuals doing business under
a firm or trade name.
13.2. AMENDMENTS. Except as otherwise herein provided, any and all
amendments, additions or deletions to this Agreements shall be null and void
unless approved by Owner and Manager in writing.
13.3. 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.
13.4. REPRESENTATIONS. Manager represents and warrants that it will at
all times relevant be fully qualified and licensed, to the extent required by
law, to develop and construct real property improvements and to manage real
estate and perform the obligations assumed by Manager hereunder. Manager agrees
to comply with all such laws now or hereafter in effect.
13.5. INDEMNIFICATION BY OWNER. Owner shall indemnify, defend and hold
Manager harmless from any claim relating to toxic contamination of any Property
or any hazardous substances thereon or therein or any construction or other
defect, whether patent or latent, on any Property or in any improvements located
on any Property.
13.6. COMPLETE AGREEMENT. This Agreement and the Schedules attached
hereto and made a part hereof, supersede and take place of any and all previous
written or oral agreements entered into between the parties hereto relating to
the Properties covered by this Agreement.
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13.7. OWNER'S SOLE DISCRETION. Whenever the Owner is entitled under
this Agreement to make a decision or determination in its "sole discretion," it
shall mean that the Owner shall be entitled to make such decision or
determination in its absolute and unfettered discretion, which may be exercised
at any time, for any reason or for no reason, and either with cause or without
cause.
13.8. GOVERNING LAW. The laws of the State of California shall govern
the validity, enforcement, and interpretation of this Agreement.
13.9. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
13.10. ATTORNEYS' FEES. If it shall be necessary for either Owner or
Manager to employ an attorney to enforce or defend its rights under this
Agreement, the non-prevailing party shall reimburse the prevailing party for its
actual reasonable attorneys' fees and costs of suit.
13.11. TIME OF THE ESSENCE. Time is of the essence of this Agreement
and of the obligations of the parties hereunder.
13.12. IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
MANAGER:
WILLIAM LYON HOMES, INC.,
a California corporation
By: /s/ NANCY M. HARLAN
----------------------------------
Nancy M. Harlan
Its: Senior Vice President
By: /s/ W. DOUGLASS HARRIS
----------------------------------
W. Douglass Harris
Its: Vice President
OWNER:
CORPORATE ENTERPRISE, INC.,
a California corporation
By: /s/ RICHARD S. ROBINSON
----------------------------------
Richard S. Robinson
Its: Senior Vice President
By: /s/ MICHAEL D. GRUBBS
----------------------------------
Michael D. Grubbs
Its: Vice President
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SCHEDULE A
I. For Placentia #117, L.P. and Lyon Lakeside #119, L.P., Corporate
Enterprises, Inc. will receive G&A fees paid by partnership until November
30, 1999.
William Lyon Homes, Inc. to receive G&A fees paid by partnership after
November 30, 1999.
II. Manager shall be entitled to payment for amounts spent in connection with
materials and all fully-burdened labor used by it in connection with the
following:
a. Corporate Enterprises, Inc. bond exonerations
b. Entitlement work for TTM 23187 located in Murrietta, California
c. Books and records for Corporate Enterprises, Inc.
d. Risk Management for Corporate Enterprises, Inc.
e. Entitlement work for Stonebridge project in Lathrop, CA
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