WESTCORE-TRT FORTUNE CONCOURSE LLC
THIS MANAGEMENT AGREEMENT (this “Agreement”) is made as of May 17, 2007, by and between WESTCORE-TRT FORTUNE CONCOURSE LLC, a Delaware limited liability company (“Owner”) and WELLCORP PROPERTIES, LLC, a Delaware limited liability company (“Manager”).
A. Owner is the owner of that certain property known as 1710, 2010, 2030 and 2040 Fortune Drive, and 1953, 1955, 1957, 1959, 1961, 1963 and 1965 Concourse Drive, City of San Jose, County of Santa Clara, State of California, and more particularly described on Schedule 1 attached hereto, together with certain office buildings (the “Buildings”) and other improvements (collectively, the “Improvements”), erected thereon (such fee simple interest and the Improvements are hereinafter collectively referred to as the “Property”).
B. Owner desires to engage and appoint Manager as its exclusive managing agent for the Property, and Manager desires to accept such appointment, all upon and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above recitals and for other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, Owner and Manager hereby agree as follows:
Owner hereby appoints and employs Manager as the exclusive managing agent for the Property upon, and subject to, the terms and conditions of this Agreement, and Manager hereby accepts such appointment. Manager shall manage, maintain and operate the Property in a manner consistent with that conducted of office building properties comparable in size, type and location to the Property and shall use reasonable diligence in all its endeavors.
This Agreement shall commence on the date hereof and, subject to Paragraph 9 below, shall remain in full force and effect for a term of five (5) years through May 31, 2012 (the “Term”); provided that if neither party terminates this Agreement by delivering written notice to the other party at least thirty (30) days prior to the then-existing termination date, this Agreement shall automatically renew on a year-to-year basis for successive twelve (12) month periods.
3. Manager’s Duties and Powers.
(a) General Scope. Except as otherwise set forth herein, Manager shall manage, coordinate and supervise the conduct of the business and affairs pertaining to the operation, maintenance and management of the Property (collectively the “Management Activities”). The Management Activities shall be conducted (hereinafter referred to as “Management Standards”) (i) in a manner consistent with the existing character, condition and level of operation and maintenance of the Property, and (ii) with reasonable diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. Additionally, to the extent reasonably practicable, Manager shall conduct the Management Activities in a manner consistent with the requirements of any Leases (as hereinafter defined), mortgages, deeds of trust, certificates of occupancy, permits, licenses, consents or other recorded and unrecorded agreements (collectively, “Key Documents”) now or hereafter affecting the Property to the extent that true and correct copies of such Key Documents have been delivered to Manager. To the extent Manager is uncertain of its obligations under any Lease or Key Document, Manager shall have the right (if Manager has requested Owner to explain Manager’s obligations and Owner has either failed to do so or Manager, in good faith, disagrees with Owner’s interpretation) to engage legal counsel at Owner’s expense (within the limitations of the Approved Annual Budget (as defined in Paragraph 5)) and to rely upon the advice of such counsel. Manager shall have no authority to and may not execute any mortgages or deeds of trust on Owner’s behalf. Unless otherwise instructed by Owner in writing, Manager shall have the right to execute Leases on Owner’s behalf, provided that such Leases are consistent with general leasing parameters approved by Owner and provided that Manager shall not without Owner’s consent execute any Major Tenant Lease under (and as defined in) that certain Agreement of General Partnership of Westcore-TRT Fortune Concourse General Partnership, a Delaware general partnership (“Westcore-TRT Partnership”), dated the date hereof (the “Westcore-TRT Fortune Concourse Partnership Agreement”), by and between Westcore-TRT Fortune Concourse Owner LLC, a Delaware limited liability company, and WP Fortune Concourse, LLC, a Delaware limited liability company (“WP Fortune Concourse”). Manager shall have such responsibilities, and shall perform and take, or cause to be performed or taken, such services and actions customarily performed or taken by managing agents of comparable office building complexes and as shall be necessary or advisable for the proper conduct of the Management Activities in accordance with the Management Standards, including, without limitation, the duties set forth in Paragraphs 3(b) through (o) below, subject, however, to the limitations set forth in this Agreement. Unless otherwise specifically provided in this Agreement, all services and actions that Manager is required or permitted to perform or take, or cause to be performed or taken, under this Agreement in connection with the Management Activities shall be performed or taken, as the case may be, on behalf of Owner and at Owner’s sole expense, and within the limitations of the Approved Annual Budget.