Exhibit 10.5
EXECUTION
COPY
MASTER REAL ESTATE MANAGEMENT
AGREEMENT
THIS MASTER REAL ESTATE MANAGEMENT
AGREEMENT (this “Agreement”), dated as of August
24, 2009, is entered into by and between INLAND DIVERSIFIED REAL ESTATE
TRUST, INC. , a Maryland
corporation (“Company”), and INLAND DIVERSIFIED DEVELOPMENT
SERVICES LLC , a Delaware limited
liability company (“Manager”).
WITNESSETH:
WHEREAS, Company intends to operate as a
“real estate investment trust” (a “REIT”),
as defined in Sections 856 through 860 of the Internal Revenue Code
of 1986, as amended (the “Code”), for federal and state
income tax purposes and expects to make investments in real estate
assets of the type permitted to be made by REITs under the Code and
otherwise in accordance with the Articles of Incorporation and
Bylaws of Company (such investments being referred to herein
collectively as the “Properties” and individually as a
“Property”); and
WHEREAS, Company desires to have Manager
manage or oversee management of certain Properties, and Manager is
willing to manage or oversee management of those Properties, on the
terms and conditions herein set forth.
NOW THEREFORE, in consideration of the
mutual covenants and conditions herein set forth, the parties
hereto agree as follows:
1.
Effective Date . Effective as of the date hereof, Company
hereby retains Manager to manage certain Properties acquired by
Company or by various entities owned or controlled by Company.
This Agreement is not an exclusive management agreement and
Manager acknowledges and agrees that Company may engage other
management companies to manage Properties not being managed by
Manager.
2.
Terms and Conditions
.
a.
If Company desires Manager to manage a
Property directly, Manager, Company, and affiliate of Company
holding title to such Property shall enter into a Real Estate
Management Agreement in form and substance as attached hereto as
Exhibit A (the “Management Agreement”).
The initial term of each Management Agreement shall commence
on the date of acquisition by Company of the Property and shall end
December 31 of the year in which the Property was acquired, with
renewal periods as described in the Management
Agreement.
b.
If Company desires Manager to oversee the
management of a Property or company, as the case may be, Manager
and Company shall enter into an Oversight Agreement in the form and
substance as attached hereto as Exhibit B (the
“Oversight Agreement”). The initial term of each
Oversight Agreement shall commence on the date of acquisition by
Company of the Property or company, as the case may be, and shall
end December 31 of the year in which the Property was acquired,
with renewal periods as described in the Oversight Agreement.
In no event shall Manager and Company enter into both a
Management Agreement and an Oversight Agreement for the same
Property.
122640.1
3.
Term and Termination
.
a.
Term . The term of this Agreement shall begin on
August 24, 2009 and end on December 31, 2009 (the “Initial
Term”). Unless terminated as provided in Section
3(b) below, the term shall thereafter automatically renew for
successive one-year periods (each, a “Renewal Term”),
with the first such one-year renewal period commencing on January
1, 2010, and ending on December 31, 2010.
b.
Termination .
i.
Either party may terminate this Agreement
if not less than sixty (60) days prior to the expiration of the
Initial Term or the current Renewal Term, as applicable, it
notifies the other party hereto in writing that it elects to
terminate this Agreement, in which case this Agreement shall be
terminated on the last day of the Initial Term or the current
Renewal Term, if applicable. Manager, between ninety (90) and
sixty (60) days prior to the expiration of the Initial Term and
each Renewal Term, shall notify the independent members of
Company’s Board of Directors, of Company’s right to
cancel this Agreement pursuant to this Section 3(b)(i) .
ii.
Additionally, at any time, Company may
terminate this Agreement, without cause or penalty, upon a vote of
a majority of Company’s independent directors by providing no
less than sixty (60) days written notice to Manager.
iii.
At the sole option of Company, this
Agreement shall be terminated immediately upon written notice of
termination from the Company’s Board of Directors to Manager
if any of the following events occurs:
(A)
Manager violates any provision of this
Agreement and fails to cure such violation on or before thirty (30)
days after receipt of notice of such violation from
Company;
(B)
a court of competent jurisdiction enters
a decree or order for relief in respect of Manager in any
involuntary case under the applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appoints a
receiver liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of Manager or for any substantial part of its
property or orders the winding up or liquidation of Manager’s
affairs; or
(C)
Manager commences a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, or consents to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
Manager or for any substantial part of its property, or makes
any
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122640.1
general assignment for the benefit of
creditors, or fails generally to pay its debts, as they become
due.
(D)
Manager agrees that if any of the events
specified in subsections (B) and (C) of this
Section 3(b)(iii) occur, it will give written notice
thereof to Company within seven (7) days after the occurrence of
the event.
c.
Effect of Termination
. Upon termination of this
Agreement, all Management Agreements and Oversight Agreements
entered into among Company, its affiliates and Manager shall
automatically terminate. In addition, upon termination of
this Agreement, Manager shall cooperate with Company and take all
reasonable steps requested by Company to assist it in making an
orderly transition of the functions performed by
Manager.
4.
Indemnification
.
a.
Company shall indemnify Manager and its
officers, directors, employees and agents (individually an
“Indemnitee”, collectively the
“Indemnitees”) to the same extent as Company may
indemnify its officers, directors, employees and agents under its
Articles of Incorporation and Bylaws so long as:
i.
the Company’s Board of Directors
has determined, in good faith, that the course of conduct that
caused the loss, liability or expense was in the best interests of
Company;
ii.
the Indemnitee was acting on behalf of,
or performing services for, Company;
iii.
the liability or loss was not the result
of negligence or misconduct on the part of the Indemnitee;
and
iv.
any amounts payable to the Indemnitee are
paid only out of Company’s net assets and not from any
personal assets of any stockholder of Company.
b.
Company shall not indemnify any
Indemnitee for losses, liabilities or expenses arising from, or out
of, an alleged violation of federal or state securities laws
(“Securities Claims”) by any Indemnitee seeking
indemnity unless one or more of the following conditions are
met:
i.
there has been a successful adjudication
for the Indemnitee on the merits of each count involving alleged
Securities Claims as to such Indemnitee;
ii.
the Securities Claims have been dismissed
with prejudice on the merits by a court of competent jurisdiction
as to such Indemnitee; or
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122640.1
iii.
a court of competent jurisdiction
approves a settlement of the Securities Claims and finds that
indemnification of the settlement and related costs should be made
and the court considering the request has been advised of the
position of the Securities and Exchange Commission and the
published opinions of any state securities regulatory authority in
which securities of Company were offered and sold with respect to
the availability or propriety of indemnification for Securities
Claims.
c.
Company shall advance amounts to
Indemnitees entitled to indemnification hereunder for legal and
other expenses and costs incurred as a result of any legal action
for which indemnification is being sought only if all of the
following conditions are satisfied:
i.
the legal action relates to acts or
omissions with respect to the performance of duties or services by
the Indemnitee for or on behalf of Company;
ii.
the legal action is initiated by a third
party and a court of competent jurisdiction specifically approves
the advance; and
iii.
the Indemnitee receiving the advances
undertakes to repay any monies advanced by Company, together with
the applicable legal rate of interest thereon, in any case(s) in
which a court of competent jurisdiction finds that the party is not
entitled to be indemnified.
5.
Company’s
Representative .
Company designates Inland
Diversified Business Manager & Advisor, Inc. as Company’s
Representative or any other person or entity designated by Company
in all dealings with Manager hereunder. Whenever notification or
reporting to Company or the approval, consent or other action of
Company is called for hereunder, any notification and reporting if
sent to or specified in writing to Company’s Representative,
and any approval, consent or action if executed by any of the
officers of Company’s Representative, shall be binding on
Company. Company’s Representative address for delivery of
reports or notice shall be:
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Name
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Address
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Inland Diversified Business Manager & Advisor, Inc.
Attn. Ms. Roberta S. Matlin,
Vice
President
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2901
Butterfield Road
Oak
Brook, IL 60523
Telephone:
(630) 218-8000
Facsimile:
(630) 218-4955
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Company’s Representative may be
changed at the discretion of Company, at any time and from time to
time, and shall be effective upon Manager’s receipt of
written notice of the new Company’s
Representative.
6.
Notices . All notices or other communications required
or permitted hereunder shall be in writing and shall be deemed
given or delivered:
a.
when delivered personally or by
commercial messenger;
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122640.1
b.
one (1) business day following deposit
with a recognized overnight courier service, provided the deposit
occurs prior to the deadline imposed by the overnight courier
service for overnight delivery; or
c.
when transmitted, if sent by facsimile
copy, provided confirmation of receipt is received by sender and
such notice is sent by an additional method provided
hereunder;
provided the notice or other
communication is addressed to the intended recipient thereof as set
forth below:
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If to Company, to:
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Inland Diversified Real Estate Trust, Inc.
2901
Butterfield Road
Oak
Brook, IL 60523
Attention:
Ms. Roberta S. Matlin,
Vice President
Telephone:
(630) 218-8000
Facsimile:
(630) 218-4955
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If to Manager, to:
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Inland Diversified Development Services LLC
2901
Butterfield Road
Oak
Brook, IL 60523
Attention:
Thomas P. McGuinness
Telephone:
(630) 218-8000
Facsimile:
(630) 218-2518
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Either party may at any time give notice
in writing to the other party of a change of its address for the
purpose of this Section 6 .
7.
Miscellaneous.
a.
Nothing contained herein shall be
construed as creating any rights in persons or entities who are not
the parties to this Agreement. Manager and Company shall not
be construed as joint venturers or partners of each other pursuant
to this Agreement, and neither shall have the power to bind or
obligate the other except as set forth herein. In all respects, the
status of Manager to Company under this Agreement is that of an
independent contractor.
b.
If any provisions of this Agreement, or
the application of any such provisions to parties hereto, shall be
held by a court of competent jurisdiction to be unlawful or
unenforceable, the remaining provisions of this Agreement shall
nevertheless be valid, enforceable and shall remain in full force
and effect, and shall not be affected, impaired or invalidated in
any manner. This Agreement, its validity, performance and
enforcement shall be construed in accordance with, and governed by,
the internal laws of the State of Illinois without regard to
conflicts of law principles.
c.
This Agreement shall be binding upon the
successors and assigns of Manager and the successors and assigns of
Company. This Agreement contains the
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122640.1
entire Agreement of the parties relating
to the subject matter hereof, and there are no understandings,
representations or undertakings by either party except as herein
contained. This Agreement may be modified solely by a written
agreement executed by both parties hereto.
d.
If any party hereto defaults under the
terms or conditions of this Agreement, the defaulting party shall
pay the non-defaulting party’s court costs and reasonable
attorneys’ fees incurred in the enforcement of any provision
of this Agreement.
e.
Either party’s failure to exercise
any right under this Agreement shall neither constitute a waiver of
any other terms or conditions of this Agreement with respect to any
other or subsequent breach, nor a waiver by that party of its right
at any time thereafter to require exact and strict compliance with
the terms of this Agreement.
f.
All exhibits attached to this Agreement
are hereby incorporated by reference. In an event of a
conflict between the exhibits and the text of this Agreement
preceding this Section, the text of this Agreement preceding this
Section shall control.
[THE REMAINDER OF THIS PAGE
INTENTIONALLY BLANK]
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122640.1
WHEREFORE, the undersigned have executed
this Agreement by their duly authorized officers or representatives
as of the date first above written.
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COMPANY:
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MANAGER:
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INLAND DIVERSIFIED REAL ESTATE TRUST
, INC.
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INLAND DIVERSIFIED DEVELOPMENT SERVICES
LLC
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By:
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/s/ Barry L. Lazarus
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By:
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/s/ JoAnn Armenta
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Name:
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Mr.
Barry L. Lazarus
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Name:
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Ms.
JoAnn Armenta
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Its:
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President
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Its:
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Senior Vice President
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122640.1
EXHIBIT A
FORM OF MANAGEMENT
AGREEMENT
See attached.
REAL ESTATE MANAGEMENT
AGREEMENT
THIS REAL ESTATE MANAGEMENT AGREEMENT
(this “Agreement”), dated as of [__________] [__],
20[__], is entered into by and between [SINGLE MEMBER LLC]
(“Owner”), and [Management
Company] LLC , a Delaware limited liability company (the
“Manager”).
WHEREAS, Owner’s ultimate parent
company, Inland Diversified Real Estate Trust, Inc. (the
“Parent Company”) directly or indirectly owns or
controls Owner;
WHEREAS, the Parent Company intends to
qualify to be taxed as a real estate investment trust pursuant to
the terms of its articles of incorporation (the “Articles of
Incorporation”) and bylaws (the “Bylaws”), as
each may be amended from time to time;
WHEREAS, Owner and the Parent Company
desire to avail themselves of the experience, sources of
information, advice, assistance and facilities available to the
Manager and to have the Manager undertake the duties and
responsibilities hereinafter set forth, on behalf of, and subject
to the supervision of, the board of directors of the Parent Company
(the “Board of Directors”) and the Owner’s
Representative (as defined below), all as provided herein;
and
WHEREAS, the Manager is willing to
undertake to render these services on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the
mutual covenants and conditions herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1.
Exclusive Management.
Owner hereby engages Manager
exclusively (subject to Section 4 below), to perform the
services described herein for the property legally described on
Exhibit A attached hereto and made a part hereof (the
“Premises”), upon the terms and conditions hereinafter
set forth herein and Manager accepts such exclusive engagement.
2.
Term and Termination
.
a.
Term . The term of this Agreement shall begin on
[__________] [__], 20[__] and end on December 31, 20[__] (the
“Initial Term”). Unless terminated as provided in
Section 2(b) below, the term shall thereafter automatically
renew for successive one-year periods (each, a “Renewal
Term”), with the first such one-year renewal period
commencing on January 1, 20[__], and ending on December 31,
20[__].
b.
Termination .
i.
Either party may terminate this Agreement
if not less than sixty (60) days prior to the expiration of the
Initial Term or the current Renewal Term, as applicable, it
notifies the other party hereto in writing that it elects to
terminate this Agreement, in which case this Agreement shall be
terminated on the last day of the Initial Term or the current
Renewal Term, if applicable. Manager, between ninety (90) and
sixty (60) days prior to the expiration of the Initial Term and
each Renewal Term, shall notify each of the independent members of
the Board of
122640.1
Directors, of Owner’s right to
cancel this Agreement pursuant to this Section 2(b)(i) .
ii.
Additionally, at any time, the Owner may
terminate this Agreement, without cause or penalty, upon a vote of
a majority of the Parent Company’s independent directors by
providing no less than sixty (60) days written notice to
Manager.
iii.
At the sole option of the Owner, this
Agreement shall be terminated immediately upon written notice of
termination from the Owner to the Manager if any of the following
events occurs:
A.
the Manager violates any provision of
this Agreement and fails to cure such violation on or before thirty
(30) days after receipt of notice of such violation from
Owner;
B.
a court of competent jurisdiction enters
a decree or order for relief in respect of the Manager in any
involuntary case under the applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appoints a
receiver liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Manager or for any substantial part of its
property or orders the winding up or liquidation of the
Manager’s affairs; or
C.
the Manager commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under any such law, or consents
to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Manager or for any substantial part of its
property, or makes any general assignment for the benefit of
creditors, or fails generally to pay its debts, as they become
due.
D.
The Manager agrees that if any of the
events specified in subsections (B) and (C) of this
Section 2(b)(iii) occur, it will give written notice
thereof to the Company within seven (7) days after the occurrence
of the event.
3.
Manager Duties.
Owner hereby gives Manager the
exclusive authority and power, as agent for Owner, to provide the
services listed in this Section 3 and elsewhere in this
Agreement and Owner agrees to reimburse Manager, and its affiliates
for all expenses paid or incurred in connection therewith.
For the avoidance of doubt, unless otherwise indicated in
this Agreement that such expenses are to be borne by Manager, all
expenses related to the duties performed by Manager herein with
respect to the Premises shall be the responsibility of the Owner
and reimbursed to Manager if initially paid for by Manager.
Manager shall be entitled at all times to manage the Premises
in accordance with Manager’s standard operating policies and
procedures all in accordance with the budget approved by Owner,
except to the extent that any
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115023.9
specific provisions contained herein are
to the contrary, in which case Manager shall manage the Premises
consistent with the specific provisions of this
Agreement.
a.
Collection of Gross Income
.
i.
Manager shall collect all rents and
assessments and other monies due Owner related to the Premises (all
such items being referred to herein as “Gross Income”).
Manager shall give Owner receipts therefor and deposit all
such Gross Income collected hereunder in Manager’s custodial
account established for the Premises using Owner approved software
which Manager will open and maintain, in a state or national bank
of Manager’s choice and whose deposits are insured by the
Federal Deposit Insurance Corporation, exclusively for the Premises
and any other properties owned by Owner (or any entity that is
owned or controlled by Parent Company) and managed by Manager.
Unless otherwise required by Owner, Manager shall be
permitted to comingle the funds in such custodial account with
funds attributable to any other properties owned by Owner or
entities owned or controlled by Parent Company and managed by
Manager. Owner agrees that Manager shall be authorized to
maintain a reasonable minimum balance (to be determined jointly
from time to time) in the custodial account. Manager may endorse
any and all checks received in connection with the operation of the
Premises and drawn to the order of Owner and Owner upon request,
shall furnish Manager’s depository with an appropriate
authorization for Manager to make the endorsement.
ii.
When applicable, Manager shall collect
and bill for security deposits or assessments and other items,
including but not limited to calculating, preparing and mailing all
invoices for tenant payments for real estate taxes, property
liability and other insurance, damages and repairs, common area
maintenance, tax reduction fees and all other tenant
reimbursements, administrative charges, proceeds of rental
interruption insurance, parking fees, income from coin operated
machines and other miscellaneous income as stipulated in the
leases. At the request of Owner, Manager will administer, and
create if necessary, a bill-back program for tenant utility
consumption unless prohibited by local law.
b.
Payment of Expenses
. From the custodial account
described above, Manager shall pay all expenses of Owner with
respect to the Premises from the Gross Income collected in
accordance with Section 3(a)(i) hereof. In the
event that expenses paid pursuant to this Section 3(b)
exceed Gross Income for any monthly period, Manager shall notify
Owner of same. Owner shall pay the excess amount immediately upon
request from Manager. Nothing herein contained shall obligate
Manager to advance its own funds on behalf of Owner.
c.
Annual Budgets . Manager shall prepare an annualized budget
for the operation of the Premises and submit the same to Owner for
approval (the “Annualized Budget”). Manager will
use its commercially reasonable efforts to operate the Premises
pursuant to the Annualized Budget; provided, however, Manager shall
have no liability to
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115023.9
Owner for failure to meet such Annualized
Budget. The Annualized Budget shall include a comparison back
to the original underwriting performed at the time of Owner’s
acquisition of the Premises and prior year performance. The
first Annualized Budget has been prepared and approved for the year
commencing [__________], [__] 20[__] and ending on December 31,
20[__]. Notwithstanding the period covered by the first
Annualized Budget, all subsequent Annualized Budgets shall cover
the period from January 1st of each year through December 31st of
the same year. The proposed Annualized Budget for each calendar
year shall be submitted by Manager to Owner by December 1st of the
year preceding the year for which it applies, and Owner shall
notify Manager within fifteen (15) days of receipt of such
Annualized Budget as to whether Owner has or has not approved the
proposed Annualized Budget. If Owner does not approve the proposed
Annualized Budget, Owner shall notify Manager of the specifics of
such disapproval within such fifteen (15) day period and Manager
shall make the necessary amendments to the Annualized Budget.
During the time Manager is preparing these amendments, Manager will
continue to operate the Premises according to the last approved
Annualized Budget. Owner’s approval of the Annualized Budget
shall constitute approval for Manager to expend sums for all
budgeted expenditures, without the necessity to obtain additional
approval of Owner under any other expenditure limitations as set
forth elsewhere in this Agreement.
d.
Non-Budgeted Expenses over
$20,000 . Manager shall
secure the approval of, and execution of appropriate agreements by,
Owner for any non-budgeted and non-emergency/contingency capital
items, alterations or other expenditures in excess of Twenty
Thousand Dollars ($20,000.00) for any one item, securing for each
item at least three (3) written bids, if practicable, or providing
evidence satisfactory to Owner that the agreed amount is lower than
industry standard pricing, from responsible contractors. Manager
shall have the right from time to time during the term hereof, to
contract with and make purchases from its affiliates and third
party agents; provided that contract rates and prices are
competitive with other available sources. Manager, at any time, and
from time to time, may request and receive the prior written
authorization of Owner for any one or more purchases or other
expenditures, notwithstanding that Manager may otherwise be
authorized hereunder to make such purchases or
expenditures.
e.
Third-Party Agreements
. Owner hereby appoints Manager as
Owner’s authorized agent for the purpose of executing, as
agent for Owner, any agreements with third-parties necessary for
operation of the Premises. For example, and not in limitation
of the foregoing, Manager shall negotiate and enter into contracts
for services and items in the Annualized Budget relating to the
Premises.
f.
Manager Employees
. Manager shall hire, supervise,
discharge and pay salary and benefit expenses for all employees of
Manager determined necessary to perform Manager’s duties
described in this Agreement including, but not limited to managers,
assistant managers, leasing consultants, engineers, janitors and
maintenance supervisors. All expenses of such employment,
including but not limited to, wages, salaries, insurance, benefits,
employment related taxes, overhead and other governmental charges,
shall be deemed operational expenses of the Premises and Owner
shall reimburse Manager for such expenses which may be charged to
Owner on a per square
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115023.9
foot or per unit basis, as applicable.
Notwithstanding the foregoing, salaries and benefits of
Manager’s employees who also serve as the one of the Parent
Company’s executive officers or as an executive officer of
the Manager shall not be reimbursed by the Owner. The number
and classification of employees serving the Premises shall be as
determined by Manager to be appropriate for the proper operation of
the Premises; provided that Owner may request changes in the
number or classification of employees, and Manager shall make all
requested changes unless in its judgment the resulting level of
operation or maintenance of the Premises will be inadequate.
[ Manager shall honor any collective bargaining contract
covering employment at the Premises which is in effect upon the
date of execution of this Agreement; provided that Manager
shall not assume or otherwise become a party to any collective
bargaining contract for any purpose whatsoever and all personnel
subject to a collective bargaining contract shall be considered the
employees of the Owner and not Manager (delete bracketed text if
not applicable to Premises)].
g.
Insured Losses .
i.
Manager shall be responsible for taking
all steps necessary to file any claim for insured losses or
damages; provided that Manager will not make any adjustments or
settlements in excess of $50,000.00 without Owner’s prior
written consent.
ii.
Manager shall coordinate with the
appropriate insurance company or companies, if applicable, to
process claims.
iii.
Manager shall administer compliance of
insurance provisions of tenant leases for all vendors and
commercial tenants, including confirming insurance requirements for
any special events at the Premises and obtaining certificates of
insurance.
iv.
At the request of Owner, Manager shall
assist Owner’s insurance consultants with any necessary
insurance matters.
v.
Manager shall attend Owner’s
Representative’s (as defined herein) meetings regarding loss
control and claims.
h.
Monthly Remittance
. Manager shall remit to Owner the
excess of Gross Income over expenses paid pursuant to Section
3(b) hereof (“Net Proceeds”) for each month as
directed by Owner at the address as stated in Section 7
hereof.
i.
Reporting . Upon the request of Owner, Manager shall
render reports for the Premises. Such reports may include
specific and detailed line item information for budget comparison,
expense detail, payables and receivables information, leasing
progress, marketing information, peer comparison and all other
measurements of the key performance indications of the
Premises.
j.
Litigation . Manager shall institute and prosecute actions
to evict tenants and to recover possession of the Premises or
portions thereof, to sue for in the name of Owner of the
Prem
