EXHIBIT 10(M)
DEVELOPMENT AGREEMENT
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THIS AGREEMENT, made and entered into this 30th day of May, 1997, by and
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between ▇▇▇▇▇ DEVELOPMENT CORPORATION, a Georgia corporation (hereinafter
referred to as the "Owner"), and ADEVCO CORPORATION, a Georgia corporation
(hereinafter referred to as the "Manager").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Owner owns or has the contractual right to acquire that
certain parcel of land located in Oklahoma City, Oklahoma, on which the Owner
proposes to develop and construct an office building with related parking,
landscaping and other site work pursuant to plans and specifications prepared
and to be prepared by Smallwood, Reynolds, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates,
Inc.; and
WHEREAS, the Owner desires to engage the Manager as an independent
contractor, upon the terms and conditions set forth herein, to supervise and
to manage the development and construction of such building and other
improvements; and
WHEREAS, the Manager desires to perform such services for the Owner in
consideration of the compensation set forth herein.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten
Dollars ($10.00) in hand paid by each party to the other, and the mutual
promises, obligations and agreements contained herein, the Owner and the
Manager, intending to be, and being, legally bound, do hereby agree as
follows:
ARTICLE 1
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DEFINITIONS
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For purposes of this Agreement, each of the following terms shall, when
used herein with an initial capital letter, have the meaning hereinbelow set
forth.
Agreement. The term "Agreement" means this Development Agreement,
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together with all amendments hereto and all exhibits attached hereto.
Architect. The term "Architect" means the architectural firm of
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Smallwood, Reynolds, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates,
Inc., and any other firm employed by the Owner as an architect with respect to
the Project.
Architect's Agreement. The term "Architect's Agreement" means the
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agreement(s) between the Owner and the Architect under which the Architect has
been or shall be engaged to prepare architectural designs, plans, drawings and
specifications for the Project and to render other services in connection with
the design and construction of the Project. The Architect's Agreement is
incorporated herein by this reference.
Building. The term "Building" means a first-class, multiple tenant
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three-story office building, containing approximately 58,068 gross square feet
and 57,186 net rentable square feet, which the Owner intends to develop and
construct upon the Land.
Completion Date. The term "Completion Date" means the first day on which
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all of the following have occurred: (i) the construction and equipping of the
Project has been completed in accordance with Architect's plans and
specifications (inclusive of landscaping plans, to the extent that landscaping
can feasibly be installed due to the season), as evidenced by a certificate to
such effect from the Architect, (ii) the Tenant Improvements for the space in
the Building to be occupied by Lucent have been completed in accordance with
the working drawings and specifications for such space, as evidenced by a
certificate to such effect from the Architect, (iii) permanent certificates of
occupancy or their equivalent have been issued by the appropriate governmental
authority with respect to the base building and with respect to the space in
the Building to be occupied by Lucent, (iv) the term of the Lucent Lease has
commenced, (v) Lucent has executed and delivered the Lucent Lease, and (vi)
Lucent has executed and delivered to the "Landlord" under the Lucent Lease an
estoppel certificate substantially in the form attached hereto as Exhibit "E"
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and by reference made a part hereof.
Construction Agreement. The term "Construction Agreement" means,
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collectively, the construction contract between the Owner and the Contractor
with respect to the Project and such other construction or employment
agreements as may be hereafter entered into by the Owner and a general
contractor or special purpose contractor with respect to the performance of
work or the providing of services to the Project. The Construction Agreement
is incorporated herein by this reference.
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Contractor. The term "Contractor" means, collectively, Integra
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Construction, Inc. and all other firms employed by the Owner as a general
contractor or as a special purpose contractor with respect to the Project; and
singly any such general or special purpose contractor.
Development Budget. The term "Development Budget" means the budget, a
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copy of which is attached hereto and made a part hereof as Exhibit "B", which
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sets forth the Manager's best estimate of all expenses to be incurred with
respect to the acquisition of the Land, the planning, design, development,
construction and completion of the Project, and the Tenant Improvements for
Lucent.
Development Fee. The term "Development Fee" means the fee to be paid to
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the Manager by the Owner as provided in Section 11.2 hereof.
Development Functions. The term "Development Functions" means those
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functions of the Manager set forth in Section 4.2 of this Agreement.
Development Period. The term "Development Period" means the period
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commencing on the date of this Agreement and terminating on the date which is
three (3) months after the Completion Date.
Event of Default. The term "Event of Default" means any one or more of
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the events described in Section 14.1 of this Agreement.
▇▇▇▇▇▇▇▇▇▇. The term "▇▇▇▇▇▇▇▇▇▇" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an
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individual residing in ▇▇▇▇ County, Georgia.
Lucent. The term "Lucent" means Lucent Technologies, Inc.
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Lucent Lease. The term "Lucent Lease" means the Lease between Owner and
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Lucent dated ___________, 1997.
Lucent Work Fee. The term "Lucent Work Fee" means the fee to be paid to
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the Manager by the Owner as provided in Section 11.3 hereof.
Land. The term "Land" means that certain parcel of land located in
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Oklahoma City, Oklahoma, as more particularly shown or described on Exhibit
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"A" attached hereto and by this reference made a part hereof.
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Manager. The term "Manager" means Adevco Corporation, a Georgia
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corporation.
Monthly Report. The term "Monthly Report" means the report to be
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prepared by the Manager and submitted to the Owner on a monthly basis as
provided in Section 7.2 hereof.
Owner. The term "Owner" means ▇▇▇▇▇ Development Corporation, a Georgia
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corporation, or its assigns.
Project. The term "Project" means the Land, the Building, and the Site
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Improvements, collectively.
Site Improvements. The term "Site Improvements" means the surface level
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parking facilities, sufficient to accommodate approximately 385 automobiles,
any and all on and off-site road improvements, walkways, complete utilities
and drainage systems, landscaping work, exterior lighting, ground-mounted
signs and other site improvements which the Owner intends to develop and
construct upon the Land.
Tenant Improvements. The term "Tenant Improvements" means all
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improvements to be constructed or installed by the "Landlord" on or within the
Project for use or operation by Lucent under or pursuant to the Lucent Lease.
Tenant Improvements Completion Date. The term "Tenant Improvements
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Completion Date" means with respect to the Tenant Improvements for Lucent, the
first day in which the Tenant Improvements in Lucent's space have been
completed in accordance with the plans and specifications for such Tenant
Improvements, all necessary certificates of occupancy or their equivalent have
been issued by the applicable governmental authority with respect to such
space, and Lucent has accepted its premises (whether or not it has taken
possession of its space) as evidenced by a customary estoppel certificate
executed by such tenant.
ARTICLE 2
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ENGAGEMENT OF THE MANAGER
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2.1 Engagement. The Owner hereby engages the Manager as the exclusive
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development manager of the Project to supervise, to manage, and to coordinate
the planning, design, construction, and completion of the Project, all in
accordance with the terms, conditions and limitations herein set forth. The
Manager hereby accepts such engagement and hereby agrees to diligently use its
best efforts in the performance of its
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duties and the Development Functions hereunder, which performance in all
respects and at all times shall be carried out to the same extent and with the
same degree of care and quality as the Manager would exercise in the conduct
of its own affairs if the Manager were the owner of the Project. The Manager
agrees to apply prudent and reasonable business practices in the performance
of its duties hereunder.
2.2 Relationship. With respect to the Owner, the Manager shall at all
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times be an independent contractor. No provision hereof shall be construed to
constitute the Manager or any of its officers or employees as an employee or
employees of the Owner nor shall any provision of this Agreement be construed
as creating a partnership or joint venture between the Manager and the Owner.
Neither the Owner nor the Manager shall have the power to bind the other party
except pursuant to the terms of this Agreement. The Manager acknowledges and
agrees that it shall act as a fiduciary hereunder with respect to the Owner
and that, with respect to all of the services to be rendered by the Manager to
the Owner pursuant to this Agreement, the Manager shall have the duty to act
at all times in the best interests of the Owner in rendering such services.
In the event the Owner disapproves of any of the general policies and
procedures of the Manager with respect to the Project and shall have so
notified the Manager, the Manager shall conform its general policies and
procedures with respect to the Project to those requested by the Owner insofar
as such policies may be consistent with the terms and provisions of this
Agreement.
ARTICLE 3
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TERM OF AGREEMENT
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The engagement of the Manager hereunder shall commence on the date on
which this Agreement is executed and shall end on the date which is three (3)
months from and after the Completion Date; provided, however, if any remedial
work to be performed by the Contractor following the completion of the Project
has not been completed or if the Manager has commenced and is diligently
prosecuting, but has not completed, any Tenant Improvements, the term of this
Agreement shall be extended until the date on which any remedial work required
to be performed by the Contractor following completion of the Project shall be
so performed and accepted by the Owner, or until the completion of such Tenant
Improvements, as the case may be.
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ARTICLE 4
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RESPONSIBILITIES OF THE MANAGER
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4.1 General Responsibility. The Manager's general responsibility
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hereunder as the Owner's development manager shall be to manage, to supervise,
and to coordinate the planning, design, construction, and completion of the
Project.
4.2 Development Functions. In discharging its general responsibility
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hereunder, the Manager shall perform and discharge the following specific
responsibilities with respect to the Project (herein collectively referred to
as the "Development Functions"):
4.2.1 The Manager shall negotiate and submit to the Owner, for the
Owner's approval and execution, the Architect's Agreement and the
Construction Agreement.
4.2.2 The Manager, in the name of, and on behalf of, the Owner, shall
maintain and continue the engagement of Smallwood, Reynolds, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Associates, Inc., as the Architect, and Integra Construction,
Inc., as a Contractor, for the compensation and on the terms provided for
in the Architect's Agreement and the Construction Agreement,
respectively; and the Manager shall supervise, administer and coordinate
the performance of all work done by the Architect and the Contractor.
The Manager shall negotiate, on terms con sistent with and within the
limitations of the Development Budget, and submit to the Owner for the
Owner's approval, contracts with such other design and engineering
professionals and consultants as the Manager deems appropriate for the
design and construction of the Project. Subject to the provisions of
Section 5.2 hereof, the employment of such other design and engineering
professionals on terms not consistent with and within the limitations of
the Development Budget shall be only at the direction of the Owner.
4.2.3 The Manager shall coordinate the acquisition by the Owner of the
Land.
4.2.4 The Manager shall implement the Development Budget as provided
herein.
4.2.5 In implementing the Development Budget and in otherwise
discharging its duties and responsibilities hereunder, the Manager shall
negotiate with, and submit to the Owner (for execution by the Owner)
contracts with,
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supervise the performance of, and review and approve or disapprove
applications for payment of the fees, charges, and expenses of, such
architects, engineers, planners, designers, consultants, general
contractors, subcontractors, vendors, and other design and construction
professionals, consultants, and suppliers as the Manager deems necessary
or appropriate to develop the Project in accordance with and subject to
the limitations of the Development Budget. Such fees, charges and
expenses shall be borne by the Owner as contemplated in the Development
Budget. Subject to the provisions of Section 5.2 hereof, the employment,
supervision and payment of such additional architects, engineers,
planners, designers, consultants, general contractors, subcontractors,
vendors, and other design and construction professionals, consultants,
and suppliers on terms not consistent with or within the limitations of
the Development Budget shall be only at the direction of the Owner.
4.2.6 The Manager shall arrange for a preliminary site plan to be
prepared showing the location within the Land of the Building and the
Site Improvements and shall submit such site plan to the Owner for
approval by the Owner. The cost of such site plan shall be borne by the
Owner as contemplated in the Development Budget.
4.2.7 The Manager shall arrange to be prepared such survey and
engineering plans and drawings as are from time to time requested by the
Owner. The costs of such survey and engineering plans shall be borne by
the Owner as contemplated in the Development Budget.
4.2.8 The Manager shall administer and oversee the selection by the
Contractor of major subcontractors and others as appropriate for
construction of the Project and review bids for acceptability from
subcontractors.
4.2.9 The Manager shall review all applicable building codes,
environmental, zoning and land use laws and other applicable local, state
and federal laws, regulations and ordinances concerning the development,
use and operation of the Project or any portion thereof. The Manager
shall make application for and seek to obtain and keep in full force and
effect all necessary governmental approvals and permits, and shall
endeavor to perform such acts as shall be reasonably necessary to effect
compliance by the Owner with all laws, rules, ordinances, statutes, and
regulations of any governmental authority applicable to
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the Project. Upon receipt of the Owner's approval, the Manager shall
seek to obtain any permits, variances or rezoning of the Land or any
portion thereof, as are necessary or appropriate to cause the Project to
be in compliance with all such codes, laws, regulations and ordinances.
All costs required to be paid to third parties in order to obtain such
permits, variances or rezonings shall be borne by the Owner as
contemplated in the Development Budget.
4.2.10 The Manager shall review all applicable private restrictions,
covenants and easement agreements concerning the development, use and
operation of the Project or any portion thereof. The Manager shall
endeavor to perform such acts as shall be reasonably necessary to effect
compliance by the Owner with all such restrictions, covenants and
easements.
4.2.11 The Manager shall negotiate and submit to the Owner for the
Owner's approval all contracts for, or otherwise arrange for the delivery
of, and pay all charges imposed on the Owner for, all utilities required
for the development, construction, and operation of the Project,
including, without limitation, water, electricity, telephone, storm
sewer, and sanitary sewer services.
4.2.12 The Manager shall coordinate the services of such accountants and
attorneys as may be engaged by the Owner upon such terms as may be
approved by the Owner and utilize such accounting and disbursement
systems as may be determined by the Owner.
4.2.13 The Manager shall review and make recommendations to the Owner
regarding the Owner's insurance program so that the Owner shall obtain
and keep in force, at the Owner's expense as contemplated in the
Development Budget, such policies of insurance, including, but not
limited to, public liability, all-risk, and builder's risk, in such
amounts and with such carriers as shall be prudent with respect to the
Project.
4.2.14 The Manager shall maintain complete and accurate records
reflecting the progress of the Manager's implementation of the
Development Budget, which records shall include all contracts, purchase
orders, disbursement requests, bids, and proposals of contractors,
suppliers, and vendors, and such other records, plans and information as
the Owner may from time
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to time request or as the Manager shall deem appropriate to maintain in
discharging its duties and responsibilities hereunder.
4.2.15 The Manager shall inspect the Project at regular intervals so as
to be kept informed as to the stage of development and the condition of
the Project.
4.2.16 Upon the Owner's prior written authorization, the Manager shall
execute for and on behalf of, and in the name of, the Owner any
applications, requests and other documents which the Manager deems
necessary or appropriate for execution by the Owner in connection with
the development or construction of the Project.
4.2.17 The Manager shall examine the contents of all applications for
payments submitted under the Architect's Agreement or any Construction
Agreement, verify the contents of such applications and prepare, execute
and deliver, or cause to be prepared, executed and delivered such
certificates and other documents as may be required by such Agreements
and shall review and approve all disbursements made by or on behalf of
the Owner under the Architect's Agreement and under any Construction
Agreement, all in accordance with the Development Budget as it may from
time to time be revised pursuant to Section 5.2 hereof. The Manager
shall process all such applications for payments and any other invoices
and charges as expeditiously as possible to avoid all penalties and any
excess interest and to take advantage, wherever possible and desirable,
of vendor discounts. The Manager shall also make recommendations to the
Owner with respect to modifications, clarifications and change orders
necessary or desirable under any Construction Agreement; and the Manager
shall also review and recommend for approval or disapproval by the Owner,
as appropriate, change orders under any Construction Agreement, all in
accordance with the Development Budget as it may from time to time be
revised pursuant to Section 5.2 hereof.
4.2.18 The Manager shall prepare all construction loan draw
requests in form and content sufficient to permit the Owner's lender, if
any, to approve or disapprove such requests.
4.2.19 The Manager shall coordinate, review, administer, manage and
oversee the work, activities and performance of the Architect under the
Architect's
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Agreement and of the Contractor under the Construction Agreement. Such
activities by the Manager shall include, without limitation, reviewing,
monitoring and coordinating all construction scheduling to ensure the
orderly process of construction and completion thereof in the manner and
within the time periods required by the Lucent Lease, and reviewing and
verifying all payment requests from the Architect and the Contractor.
The Manager shall serve as the Owner's representative in all discussions,
negotiations, and dealings with the Architect and the Contractor. The
Manager shall periodically (but no less often than weekly) advise the
Owner of the status of the Project and of the performance by the
Architect and by the Contractor of their respective duties and
obligations with respect to the Project. The Manager shall also assist
and advise the Owner with respect to the performance and enforcement by
the Owner of its duties and rights under the Architect's Agreement and
the Construction Agreement. The Manager shall coordinate with the
Architect and the Contractor an orderly and expeditious transition from
the construction stage of the Project to the operating and leasing stage
of the Project and, in connection therewith, the Manager shall expedite
and supervise the completion of any remedial work that may be required to
be performed by the Contractor following the completion of the Project.
4.2.20 The Manager shall cooperate with the Owner's inspecting engineer,
if any, engaged for the purpose of reviewing the status of the work.
4.2.21 The Manager shall purchase, to the extent the same are not
provided under the Construction Agreement, all supplies, materials, and
equipment required in connection with the development of the Project, and
the cost of same shall be borne by the Owner as contemplated in the
Development Budget.
4.2.22 The Manager shall coordinate, review, administer, manage and
oversee the work and activities relating to, and the performance of, the
Tenant Improvements to be constructed and installed by the "Landlord"
under the Lucent Lease.
4.2.23 The Manager shall deliver to the Owner the originals of all
permits, licenses, guaranties, warranties, bills of sale and other
contracts, agreements, change orders or commitments obtained or received
by the Manager for the account or benefit of the
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Owner, it being understood that the Owner, upon the Owner's approval
thereof, will execute all such contracts, agreements, change orders and
documents, and that the Manager will not, under any circumstances,
execute contracts, agreements, change orders or documents on behalf of
the Owner except as specifically provided otherwise in this Agreement or
as otherwise expressly authorized in writing by the Owner.
4.2.24 The Manager shall perform and discharge all other obligations of
the Manager under this Agreement.
4.3 Completion. The Manager hereby agrees to diligently use its best
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efforts and shall devote sufficient time and personnel to cause the
development of the Project to be completed in compliance with the time
parameters established therefor under the Lucent Lease, and in accordance with
the Development Budget as it may from time to time be revised pursuant to
Section 5.2 hereof.
4.4 Employees. The Manager shall have in its employ at all times a
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sufficient number of capable employees to enable the Manager to perform its
duties hereunder. All persons, other than independent contractors, employed
by the Manager in the performance of its responsibilities hereunder shall be
exclusively controlled by and shall be the employees of the Manager and not of
the Owner, and the Owner shall have no liability, responsibility or authority
with respect thereto. The Manager agrees that the Manager shall cause
▇▇▇▇▇▇▇▇▇▇ to be personally involved in the performance of the Development
Functions and the other obligations and undertakings of the Manager hereunder.
4.5 Manager's Costs. Notwithstanding anything contained in any other
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provision of this Agreement to the contrary, the following costs and expenses
shall be borne solely by the Manager and shall not be borne by the Owner:
(a) Cost of gross salary and wages, payroll taxes, insurance, workers'
compensation and other benefits of ▇▇▇▇▇▇▇▇▇▇ and any other employees of
the Manager;
(b) Cost of forms, papers, ledgers and other supplies and equipment used
in the Manager's office;
(c) Cost of electronic data processing or computer services, or any pro
rata charge for data processing or computer services provided by computer
service companies,
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which the Manager may elect to incur in the performance of the
Development Functions;
(d) Cost of office equipment acquired by the Manager to enable it to
perform its duties hereunder;
(e) Cost of advances made to employees of the Manager and cost of travel
and lodging by the Manager's employees and agents, including ▇▇▇▇▇▇▇▇▇▇;
and
(f) Cost attributable to losses, including any legal fees relating
thereto, arising from negligence, fraud or willful act or omission on the
part of the Manager or any of the Manager's officers, directors,
employees or agents, except to the extent such costs are to be borne by
the Owner pursuant to Section 9.3 hereof.
ARTICLE 5
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DEVELOPMENT BUDGET
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5.1 Implementation of Development Budget. The Owner hereby approves
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the Development Budget and the Manager is hereby authorized and directed to
implement the Development Budget pursuant to this Agreement. The Manager may,
without the need for any further approval whatsoever by the Owner, make any
expenditures and incur any obligations provided for in the Development Budget,
as it may be revised from time to time as provided herein. The Manager shall
use prudence and diligence and shall employ its best efforts to ensure that
the actual costs incurred for each category or line item of expense as set
forth in the Development Budget shall not exceed such category or line item in
the Development Budget. The Manager shall advise the Owner promptly if it
appears that costs in any category or line item specified in the Development
Budget will exceed the amount budgeted therefor. All expenses shall be
charged to the proper category or line item in the Development Budget, and no
expenses may be classified or reclassified for the purpose of avoiding an
excess in the budgeted amount of a category or line item without the Owner's
prior written approval. The Manager shall secure the Owner's prior written
approval before incurring and paying any cost which will result in aggregate
expenditures under any one category or line item in the Development Budget
exceeding the amount budgeted therefor.
5.2 Revision of Development Budget. If the Manager at any time
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determines that the Development Budget is not compatible with the then-
prevailing status of the Project and
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does not adequately provide for the completion of the Project, the Manager
shall promptly prepare and submit to the Owner an appropriate revision of the
Development Budget. Any such revision shall require the approval of the
Owner; provided, however, that any such revision shall be considered approved
on the fourteenth (14th) day following its delivery to the Owner, unless the
Owner shall, within such fourteen (14) day period, notify the Manager in
writing of its disapproval of the proposed revision and specify in such notice
the items to which it objects. In the event of any such objection, the
Manager and the Owner shall consult and endeavor to reconcile their
differences.
5.3 Emergencies. Notwithstanding any limitations herein provided, the
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Manager may spend funds or incur expenses on behalf of the Owner in
circumstances which the Manager reasonably and in good faith believes
constitute an emergency requiring prompt action to avert, or reduce the risk
of, damage to persons or property. The Manager shall, in any case, notify the
Owner as soon as practicable of the existence of such emergency and of the
action taken by the Manager with respect thereto.
5.4 Reduction in Fees. In the event that the total of all costs and
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expenses actually incurred by the Owner with respect to the acquisition of the
Land and the planning, design, development, construction and completion of the
Project, the Tenant Improvements for Lucent under the Lucent Lease (including
costs in all categories or line items specified in the Development Budget, but
expressly excluding costs for the specific line items marked with a double
asterisk in the Development Budget, and net of amounts reimbursed to the Owner
by Lucent with respect to Tenant Improvements for such tenant) shall exceed
$4,952,853.00, the amount of the fees payable to the Manager under Sections
11.2 and 11.3 hereof shall be reduced by the amount of such excess, with any
reductions to be applied to such fees in the following order of priority:
(a) first, to unpaid portions of the Development Fee until the
remaining Development Fee is reduced to zero;
(b) then to unpaid portions of the Lucent Work Fee until the remaining
Lucent Work Fee is reduced to zero; and
(c) then to any portion of the Development Fee and the Lucent Work Fee
which has theretofore been paid to
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the Manager until all such fees have been reduced to zero, and the
Manager hereby agrees to reimburse to the Owner an amount of such
fees theretofore paid to the Manager as shall equal the amount of
such reduction.
The aforesaid reductions in the fees payable to the Manager under Sections
11.2 and 11.3 hereof shall be effected regardless of whether or not
appropriate revisions of the Development Budget are approved by the Owner and
regardless of whether or not any increases in costs and expenses incurred by
the Owner with respect to the acquisition of the Land or the planning, design,
development, construction and completion of the Project and the Tenant
Improvements for Lucent are approved by the Owner; provided, however, in the
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event such costs and expenses shall increase as a result of a change by the
Owner in the scope of the work comprising the Project, the incremental costs
due to the change in the scope of the work shall not cause a reduction in the
fees payable to the Manager under Sections 11.2 and 11.3 hereof. The Owner
shall not be obligated to accept or agree to changes in the scope of the work
comprising the Project in order to reduce the costs and expenses with respect
thereto. The Owner and the Manager agree that appropriate reductions in the
fees payable to the Manager (and reimbursements thereof to the Owner, if
applicable) shall be effected as and when it is reasonably determined by the
Owner that the costs and expenses under any category or line item in the
Development Budget shall exceed the amount originally budgeted therefor or
that costs and expenses will be incurred that are not originally budgeted
under the Development Budget; provided, however, the Owner and the Manager
shall make reasonable allocations of the "contingency" category or line item
in the Development Budget to other categories or line items prior to effecting
a reduction in the fees payable to the Manager, so long as a reasonable
reserve is maintained in the "contingency" category or line item to cover
future contingencies. Promptly following the Completion Date, the Owner and
the Manager shall make any final adjustments and payments between them to give
effect to the agreements set forth in this Section 5.4.
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ARTICLE 6
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AUTHORITY OF THE MANAGER
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6.1 General Authority. The Manager shall have, and is hereby granted
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by the Owner, full and complete power, authority, and discretion to act for,
and in the name, place, and stead of, the Owner in carrying out and
discharging the responsibilities and obligations of the Manager under this
Agreement (including, without limitation, all of the responsibilities imposed
upon the Manager under Article 4 hereof); provided, however, that the Manager
shall have no right or authority, express or implied, to commit or otherwise
obligate the Owner in any manner whatsoever except to the extent specifically
provided herein or specifically authorized in writing by the Owner.
6.2 Execution of Documents and Agreements. Only when specifically
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authorized by the Owner in a writing to the Manager, the Manager may, at the
Manager's election, execute any documents, agreements, or other instruments on
behalf of the Owner as follows, it being acknowledged that the Manager shall
be entitled to the indemnification by the Owner for any obligations or
liabilities thereunder and shall not thereby incur any liability or obligation
to any third party thereunder:
▇▇▇▇▇ DEVELOPMENT CORPORATION,
a Georgia corporation
By: Adevco Corporation,
a Georgia corporation,
as Manager
By:___________________________
Title:________________________
(CORPORATE SEAL)
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ARTICLE 7
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ACCOUNTING AND REPORTS
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7.1 Books of Account. The Manager shall maintain or cause to be
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maintained true and accurate books of account reflecting the planning, design,
construction, and completion of the Project. All entries to such books of
account shall be supported by sufficient documentation to permit the Owner and
its auditors to ascertain that said entries are properly and accurately
recorded. Such books of account shall be located at the Manager's principal
metropolitan Atlanta, Georgia office and shall be maintained in accordance
with the Manager's present cash method of accounting, unless otherwise
directed or approved by the Owner. The Manager shall ensure such control over
accounting and financial transactions as is reasonably required to protect the
Owner's assets from theft, error or fraudulent activity on the part of the
Manager, the Manager's employees or agents.
7.2 Monthly Reports. Promptly following the end of each calendar
---------------
month, the Manager shall prepare a report with respect to the Project
(hereinafter referred to as the "Monthly Report") and shall cause the same to
be delivered to the Owner and the Owner's inspecting engineer, if any. Each
Monthly Report shall be subdivided into categories specified in the
Development Budget and shall contain the following information respecting the
Project:
(a) The draw request for the month covered by the Monthly Report,
including:
(i) each draw request letter;
(ii) each certificate of the Architect;
(iii) each application and certificate for payment of the
Contractor; and
(iv) any other invoices covered in the draw request.
(b) The costs incurred under the Construction Contract as of the date of
the Monthly Report.
(c) All costs incurred but not paid as of the date of such Monthly
Report.
(d) A comparison of the amount of actual costs incurred as of the date
of the Monthly Report to the budgeted
16
costs as of such date, shown on a line-item basis using the same
categories or line items set forth in the Development Budget.
(e) Photographs of the Project depicting the current status of
construction.
(f) A report with respect to the progress of construction, including
information as to whether the commencement, milestone and completion
dates in the Lucent Lease are being achieved. The Manager shall identify
in such report potential variances between the completion dates required
in the Lucent Lease and the probable completion dates and shall make
recommendations as to adjustments necessary to meet the required
completion dates.
The Manager shall furnish the Owner with a certificate from ▇▇▇▇▇▇▇▇▇▇ in
respect of each such Monthly Report certifying that such Monthly Report is
accurate, true and complete in all respects.
7.3 Construction Draw Reports. The Manager shall cause to be
-------------------------
delivered to the Owner, at the Owner's expense, promptly after they are
prepared, copies of each construction draw request under any construction loan
obtained by the Owner with respect to the Project.
7.4 Annual Development and Financial Statements. Within thirty (30)
-------------------------------------------
days after the end of each fiscal year of the Owner during the term of this
Agreement, the Manager shall cause to be prepared and delivered to the Owner,
at the Owner's expense, a report which is a summary of the previous Monthly
Reports for such fiscal year which have been tendered to the Owner pursuant to
Section 7.2 hereof. In addition, within sixty (60) days after the end of each
fiscal year of the Owner during the term of this Agreement, the Manager shall
cause to be prepared and delivered to the Owner, at the Owner's expense,
unaudited financial statements reflecting all receipts and disbursements
collected, received, or made by the Manager with respect to the development
and the construction of the Project for such fiscal year. The Manager shall
also cause to be prepared and delivered to the Owner such other reports and
information with respect to the development and construction of the Project
for each fiscal year as the Owner shall reasonably request.
7.5 Examination of Books and Records. The Owner, at its expense,
--------------------------------
shall have the right at all reasonable times
17
during normal business hours and upon at least twenty-four (24) hours advance
notice, to audit, to examine, and to make copies of or extracts from the books
of account and records maintained by the Manager with respect to the Project.
If the Owner shall notify the Manager of either weaknesses in internal control
or errors in record keeping, the Manager shall correct such weaknesses and
errors as soon as possible after they are disclosed to the Manager. The
Manager shall notify the Owner in writing of the actions taken to correct such
weaknesses and errors.
ARTICLE 8
---------
BANKING
-------
8.1 Separate Accounts. It is contemplated that the Owner will make
-----------------
disbursements with respect to the development and construction of the Project
directly to the Architect and the Contractor. Nevertheless, all disbursements
and other funds of the Owner which may be received by the Manager hereunder
with respect to the development or construction of the Project shall be
deposited by the Manager and held in such bank account or accounts maintained
by the Manager in such bank or banks with federal deposit insurance protection
as may be selected by the Manager and approved by the Owner. All such funds
shall be and shall remain the property of the Owner and shall be disbursed by
the Manager in payment of the obligations of the Owner incurred in connection
with the development and construction of the Project, or, subject to the
provisions of Section 8.2 below, shall be disbursed to the Owner at the
Owner's request. Except as hereinafter provided, the Manager shall not
commingle the Owner's funds with the funds of any other person.
8.2 The Owner's Duty to Provide Funds. The Owner agrees that the
---------------------------------
Owner will pay all current obligations of the Owner in accordance with the
Development Budget, including all obligations of the Owner to the Manager
hereunder. Alternatively, at the Owner's option, the Owner may elect to
provide funds to the Manager so that the Manager can pay all such obligations
of the Owner (excluding obligations to the Manager, it being understood and
agreed that such obligations to the Manager shall be paid directly by the
Owner to the Manager). If the Owner elects to cause the Manager to make
payment of such obligations, the Owner hereby agrees that, by making deposits
to (following notice as provided below), or by refraining from withdrawing
funds from, the bank account or accounts maintained by the Manager pursuant to
Section 8.1 above, the Owner shall, during the term of this Agreement,
18
maintain sufficient funds in such bank account or accounts to enable the
Manager to pay all current obligations of the Owner in accordance with the
Development Budget, excluding the obligations of the Owner to the Manager
hereunder. Accord ingly, the Owner shall, within ten (10) days of its receipt
of any written request from the Manager for additional funds (which request
must specify the amount of such funds requested and the purposes for which
they are to be used), deposit in such bank account or accounts such additional
funds as the Owner shall consider appropriate with respect to such request by
the Manager.
8.3 Investment of Owner's Funds. If at any time there are in the bank
---------------------------
account or accounts established pursuant to Section 8.1 above, funds of the
Owner, from whatever sources, temporarily exceeding the immediate cash needs
of the Project, the Manager may (and at the discretion of the Owner shall)
invest such excess funds in such savings accounts, certificates of deposit,
United States Treasury obligations, commercial paper, and the like, as the
Manager shall deem appropriate or as the Owner shall direct, provided that the
form of any such investment shall be consistent with the Manager's need to be
able to liquidate any such investment to meet the cash needs of the Project
from time to time.
ARTICLE 9
---------
STANDARD OF CARE; LIABILITY;
----------------------------
INDEMNITY; CONFIDENTIALITY
--------------------------
9.1 Standard of Care; Manager's Liability. The Manager shall have no
-------------------------------------
liability to the Owner for any errors of judgment, or any mistakes of fact or
of law, made in a good faith effort to perform and carry out the Manager's
responsibilities under this Agreement, unless the Manager has failed to
exercise that degree of care and skill which a reasonable and diligent
businessman in the Manager's profession would exercise in transactions of a
similar nature for his own account, provided, of course, that sufficient funds
are made available by the Owner for the performance of the Manager's
responsibilities.
9.2 Indemnity of Owner. The Manager hereby agrees to indemnify,
------------------
defend and hold harmless the Owner and its partners and their respective
officers, directors and employees, from and against any and all claims,
demands, losses, liabilities, actions, lawsuits and other proceedings,
judgments and awards, and costs and expenses (including without limitation
reasonable attorneys' fees and court costs incurred in
19
connection with the enforcement of this indemnity or otherwise), arising out
of the negligence, fraud or any willful act or omission of the Manager, or any
of its officers, directors, agents or employees, in connection with this
Agreement or the Manager's services or work hereunder, whether within or
beyond the scope of its duties or authority hereunder.
9.3 Indemnity of Manager. The Owner hereby agrees to indemnify,
--------------------
defend and hold harmless the Manager, its officers, directors and employees,
from and against any and all claims, demands, losses, liabilities, actions,
lawsuits and other proceedings, judgments and awards, and costs and expenses
(including without limitation reasonable attorney's fees and court costs
incurred in connection with the enforcement of this indemnity or otherwise),
arising out of (i) any action taken by the Manager within the scope of its
duties or authority hereunder, excluding only such of the foregoing as result
from the negligence, fraud or willful act of the Manager, its officers,
directors, agents and employees, and (ii) the negligence, fraud or any willful
act or omission of the Owner and its partners and their respective officers,
directors and employees.
9.4 Survival of Indemnities. The provisions of Sections 9.2 and 9.3
-----------------------
hereof shall survive the completion of the Manager's services hereunder or any
earlier termination of this Agreement.
9.5 No Obligation to Third Parties. None of the responsibilities and
------------------------------
obligations of the Manager under this Agreement shall in any way or in any
manner be deemed to create any liability of the Manager to, or any rights in,
any person or entity other than the Owner.
9.6 Nature of the Manager's Duties and Responsibilities. The Owner
---------------------------------------------------
hereby acknowledges that the Manager's duties and responsibilities hereunder
with respect to the development and construction of the Project consist only
in managing, supervising, and coordinating the planning, design, construction
and completion of the Project and the performance of the other Development
Functions in accordance with the terms of this Agreement; that the Manager is
not itself preparing any architectural or engineering plans, designs, or
specifications or performing any construction required for the development or
completion of the Project; that the Manager is not a guarantor or insurer of
any work to be performed by any other party in connection with the planning,
design, construction, and completion of the Project;
20
and that the Manager is not responsible for, and will not be liable for, any
work, act, omission, negligence, gross negligence, or intentional misconduct
of any other party employed by the Owner or performing work for the Owner in
connection with the Project.
9.7 Ownership of Information and Materials. The Owner shall have the
--------------------------------------
right to use, without further compensation to the Manager, all written data
and information generated by or for the Manager in connection with the Project
or supplied to the Manager by the Owner or the Owner's contractors or agents,
and all drawings, plans, books, records, contracts, agreements and all other
documents and writings in its possession relating to its services or the
Project. Such data and information shall at all times be the property of the
Owner. The Manager agrees, for itself and all persons retained or employed by
the Manager in performing its services, to hold in confidence and not to use
or disclose to others any confidential or proprietary information of the Owner
which is heretofore or hereafter disclosed to the Manager or any such persons
and which is designated by the Owner as confidential and proprietary,
including but not limited to any proprietary or confidential data,
information, plans, programs, plants, processes, equipment, costs, operations,
tenants or customers which may come within the knowledge of the Manager or any
such persons in the performance of, or as a result of, its services, except
where (i) the Owner specifically authorizes the Manager to disclose any of the
foregoing to others or such disclosure reasonably results from the performance
of the Manager's duties hereunder, or (ii) such written data or information
shall have theretofore been made publicly available by parties other than the
Manager or any such persons. Nothing contained in this Section 9.7 shall be
deemed to limit or restrict the provisions of Article 15 hereof or of the
rights of the Manager thereunder.
ARTICLE 10
----------
INSURANCE
---------
10.1 Insurance Requirements. Throughout the term of this Agreement,
----------------------
insurance with respect to the Project shall be carried and maintained in force
in accordance with the provisions contained in Exhibit "C, attached hereto and
----------
incorporated herein by this reference, with the premiums and other costs and
expenses for such required insurance to be borne as provided in Exhibit "C".
-----------
21
10.2 Owner's Insurance Primary Coverage. As between any insurance
----------------------------------
carried by the Owner pursuant to this Article 10 and any insurance carried by
the Manager, the Owner's insurance shall for all purposes be considered the
primary coverage, and no claim shall be made under or with respect to any
insurance maintained by the Manager except in the event that the Owner's
entire insurance is exhausted (without regard to whether the actual amount of
the Owner's insurance exceeds the amounts specified in this Article 10).
10.3 Waiver of Subrogation. Each insurance policy maintained by the
---------------------
Owner or by the Manager with respect to the Project shall contain a waiver of
subrogation clause, so that no insurer shall have any claim over or against
the Owner or the Manager, as the case may be, by way of subrogation or
otherwise, with respect to any claims which are insured under any such policy.
ARTICLE 11
----------
COMPENSATION OF THE MANAGER
---------------------------
11.1 Fees - General. As compensation for the services rendered and to
--------------
be rendered by the Manager under this Agreement, the Owner shall pay the
Manager the Development Fee and the Lucent Work Fee, all in accordance with
and subject to the terms and provisions of Sections 11.2 and 11.3 hereof,
respectively, and all such fees shall be subject to reduction as provided in
Section 5.4 hereof.
11.2 Development Fee. The Owner shall pay the Manager, as the
---------------
Development Fee for the Project, the sum of One Hundred Fifty Thousand and
No/100 Dollars ($150,000.00). The Development Fee shall be due and payable
ratably (on the basis of the percentage of construction completed) as the
construction and development of the Project are completed. The Development
Fee shall be paid in monthly installments commencing with the month following
the month during which the on-site development work with respect to the
Project shall commence. The remaining balance of the Development Fee shall be
due and payable upon the Completion Date.
11.3 Lucent Work Fee. The Owner shall pay the Manager, as the Lucent
---------------
Work Fee, the sum of One Hundred Fifty Thousand and No/100 Dollars
($150,000.00). The Lucent Work Fee shall be due and payable in one lump sum
upon the Completion Date.
11.4 Disbursements to the Manager. The Manager may not disburse to
----------------------------
itself any amounts due under this Article 11 from
22
the bank account or accounts maintained by the Manager pursuant to Article 8
hereof, it being understood and agreed that the amounts due and payable to the
Manager under this Article 11 shall be paid directly by the Owner to the
Manager.
ARTICLE 12
----------
Intentionally Omitted
---------------------
ARTICLE 13
----------
REIMBURSEMENT OF ADVANCES, COSTS AND EXPENSES
---------------------------------------------
13.1 Reimbursement of Advances. The Manager shall not be required to advance
-------------------------
any of its own funds for the payment of any costs and expenses incurred by or on
behalf of the Owner in connection with the Project, but if the Manager advances
its own funds in payment of any of such costs and expenses, the Owner, subject
to the provisions of Sections 4.5, 5.2 and 11.4 hereof, shall promptly reimburse
the Manager or, in lieu thereof, the Manager may reimburse itself from the bank
account or accounts maintained by the Manager pursuant to Article 8 hereof.
13.2 Reimbursement of Costs and Expenses. Promptly after execution of this
-----------------------------------
Agreement, the Owner shall reimburse the Manager for all costs and expenses set
forth on Exhibit "D" attached hereto and by this reference made a part hereof,
-----------
all of which costs and expenses the Manager hereby represents and warrants were
incurred and paid by the Manager prior to the date hereof (or will be paid by
the Manager in due course) in connection with the Project and are authorized and
bona fide expenditures under the Development Budget.
ARTICLE 14
----------
DEFAULT AND TERMINATION
-----------------------
14.1 Default by Manager. Upon the happening of any Event of Default (as
------------------
hereinafter defined), the Owner shall have the absolute unconditional right to
terminate this Agreement by giving written notice of such termination to the
Manager. Any one or more of the following events shall constitute an "Event of
Default" by the Manager under this Agreement:
(a) If the Manager shall fail to observe, perform or comply in any
material respect with any term, covenant, agreement or condition of this
Agreement which is to be observed, performed or complied with by the
Manager under the
23
provisions of this Agreement, and such failure shall continue uncured for
ten (10) days after the giving of written notice thereof by the Owner to
the Manager specifying the nature of such failure, unless such failure can
be cured but is not susceptible of being cured within said ten (10) day
period, in which event such a failure shall not constitute an Event of
Default if the Manager commences curative action within said ten (10) day
period, and thereafter prosecutes such action to completion with all due
diligence and dispatch;
(b) If the Manager or ▇▇▇▇▇▇▇▇▇▇ shall make a general assignment for the
benefit of creditors;
(c) If any petition shall be filed against the Manager or ▇▇▇▇▇▇▇▇▇▇ in
any court, whether or not pursuant to any statute of the United States or
of any State, in any bankruptcy, reorganization, dissolution, liquidation,
composition, extension, arrangement or insolvency proceed ings, and such
proceedings shall not be dismissed within sixty (60) days after the
institution of the same, or if any such petition shall be so filed by the
Manager or ▇▇▇▇▇▇▇▇▇▇;
(d) If, in any proceeding, a receiver, trustee or liquidator be appointed
for all or a substantial portion of the property and assets of the Manager
or ▇▇▇▇▇▇▇▇▇▇, and such receiver, trustee or liquidator shall not be
discharged within ninety (90) days after such appointment;
(e) If the Manager shall assign this Agreement or any of its rights or
obligations hereunder, without the prior written consent of the Owner; and
(f) If the Manager shall intentionally or willfully fail to perform any of
its duties or obligations hereunder, or if the Manager shall misappropriate
any funds of the Owner in the possession or control of the Manager or shall
otherwise commit an act of fraud against the Owner (except that if such
misappropriation of funds or fraud by the taking is committed by an
employee of the Manager other than ▇▇▇▇▇▇▇▇▇▇, such event may be cured by
the Manager if the Manager makes prompt restitution to the Owner and
discharges such employee).
14.2 Additional Terminating Event. The Owner shall have the right to
----------------------------
terminate this Agreement upon written notice to the Manager in the event
▇▇▇▇▇▇▇▇▇▇ shall die, become permanently or temporarily disabled or shall cease
for reasons beyond his
24
control to be actively involved in performing, on behalf of the Manager, the
Development Functions and the other obligations and undertakings of the Manager
hereunder. The Owner shall also have the right to terminate this Agreement upon
written notice to the Manager in the event the Owner shall elect for any reason
whatsoever not to acquire the Land.
14.3 Default by Owner. If the Owner fails to comply with or perform in any
----------------
material respect any of the terms and provisions to be complied with or any of
the obligations to be performed by the Owner under this Agreement, and such
failure continues uncured for a period of fifteen (15) days after written notice
to the Owner specifying the nature of such default (or, in the case of a non-
monetary default, such longer period of time as may be needed in the exercise by
the Owner of due diligence to effect a cure of any such non-monetary default),
then the Manager shall have the right, in addition to all other rights and
remedies available to the Manager at law and in equity (including without
limitation the right to pursue an action for specific performance), at its
option, to terminate this Agreement by giving written notice thereof to the
Owner, in which event the Owner shall immediately pay to the Manager, in cash,
the sums payable to the Manager upon termination as provided in Section 14.4
hereof, and upon the payment of such amounts, subject to Sections 9.2, 9.3, 9.7,
12.3(d) and 14.5 hereof, the Owner and the Manager shall have no further rights,
duties, liabilities or obligations whatsoever under this Agreement.
14.4 Obligation for Fees Upon Termination. Upon any termination of this
------------------------------------
Agreement, the Owner shall pay to the Manager all amounts due and payable to the
Manager as of the date of termination pursuant to the terms of this Agreement
(including, without limitation, any accrued but unpaid installments of the
Development Fee) less, if this Agreement terminates as a result of an Event of
----
Default, an amount equal to the damages incurred or suffered (or to be incurred
or suffered) by the Owner as a result of such Event of Default. Upon the
payment of all such amounts payable under this Section, subject to Sections 9.2,
9.3, 9.7, 12.3(d) and 14.5 hereof, the Owner and the Manager shall have no
further rights, duties, liabilities or obligations whatsoever under this
Agreement.
25
14.5 Actions Upon Termination. Upon any termination of this Agreement,
------------------------
the Manager shall promptly (a) account for and deliver to the Owner any monies
of the Owner held by the Manager, including funds in the bank account or
accounts maintained by the Manager pursuant to Article 8 hereof and any funds
due the Owner under this Agreement but received after such termination, and (b)
deliver to the Owner or to such other person as the Owner shall designate in
writing, all materials, supplies, equipment, keys, contracts, documents and
books and records pertaining to this Agreement or the development of the
Project. The Manager shall also furnish all such information, take all such
other action and shall cooperate with the Owner as the Owner shall reasonably
require in order to effectuate an orderly and systematic termi nation of the
Manager's duties and activities hereunder. This Section 14.5 of this Agreement
shall survive any termination of this Agreement.
ARTICLE 15
----------
OTHER ACTIVITIES OF THE MANAGER
-------------------------------
The Owner hereby acknowledges that the Manager is engaged in the ownership,
development, leasing, sale, and management of commercial properties other than
the Project and the Owner hereby agrees that the Manager shall in no way be
restricted from, or have any liability to account to the Owner with respect to,
such activities, notwithstanding that such activities may compete with, or be
enhanced by, the Manager's activities under this Agreement or the Owner's
ownership of the Project.
ARTICLE 16
----------
NATURE OF AGREEMENT
-------------------
The rights and duties granted to and assumed by the Manager hereunder are
those of an independent contractor only. Nothing contained herein shall be so
construed as to constitute the relationship created under this Agreement between
the Manager and the Owner as a mutual agency, a partnership, or a joint venture.
26
ARTICLE 17
----------
GENERAL PROVISIONS
------------------
17.1 Notices. Whenever any notice, consent, approval, demand or request
-------
required or permitted under this Agreement, such notice, consent, approval,
demand or request shall be in writing and shall be delivered by hand or sent by
registered or certified mail, return receipt requested, to the addresses set out
below or to such other addresses as are specified by written notice given in
accordance herewith, or sent via facsimile transmission to the facsimile numbers
set out below or to such other facsimile numbers as are specified by written
notice given in accordance herewith:
Owner: ▇▇▇▇▇ Development Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇, III
with a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager: Adevco Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
All notices, consents, approvals, demands or requests delivered by hand shall
be deemed given upon the date so delivered; those given by mailing as
hereinabove provided shall be deemed given on the date on which such notice,
demand, or request is so deposited in the United States Mail; those given by
facsimile transmission shall be deemed given on the date shown on sender's copy
hereof showing the proper "answerback" code for the facsimile transmission
number to which the notice is sent. None theless, the time period, if any, in
which a response to any notice, demand, or request must be given shall commence
to run from the date of receipt of the notice, demand, or request by the
addressee thereof. Any notice, demand, or request not received because of
changed address of which no notice was given as hereinabove provided or because
of refusal to accept delivery shall be deemed received by the party to whom
addressed on the
27
date of hand delivery or on the third calendar day following deposit in the
United States Mail, as the case may be.
17.2 Modifications. Neither any change or modification of this Agreement nor
-------------
any waiver of any term or condition hereof shall be valid or binding on the
parties hereto, unless such change, modification, or waiver shall be in writing
and signed by the party to be bound thereby.
17.3 Binding Effect. This Agreement shall inure to the benefit of and shall
--------------
be binding upon the parties hereto, their successors, transferees, and permitted
assigns.
17.4 Duplicate Originals. For the convenience of the parties hereto, any
-------------------
number of counterparts hereof may be executed, each such counterpart shall be
deemed to be an original instrument, and all of such counterparts shall together
be deemed one and the same instrument.
17.5 Construction. This Agreement shall be interpreted, constructed, and
------------
enforced in accordance with the laws of the State of Georgia. The titles of the
articles and sections herein have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions herein. The parties agree that they have both
participated equally in the negotiation and preparation of this Agreement and no
court construing this Agreement or the rights of the parties hereunder shall be
prejudiced toward either party by reason of the rule of con struction that a
document is to be construed more strictly against the party or parties who
prepared the same.
17.6 Entire Agreement. This Agreement is intended by the parties hereto to be
----------------
the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof
notwithstanding any representation or statement to the contrary heretofore made.
17.7 Assignment. This Agreement shall not be assigned by the Manager without
----------
the prior written consent of the Owner, and any such assignment by the Manager
without the prior written consent of the Owner shall be null, void and of no
force and effect and shall be an Event of Default hereunder. Upon any
assignment of this Agreement by Owner to Fund IX and Fund X Associates, a
Georgia general partnership, or any other partnership having ▇▇▇ ▇. ▇▇▇▇▇, III
or ▇▇▇▇▇ Capital, Inc. as the ultimate general partner thereof, and the express
assumption by such party of the obligations of "Owner" arising or accruing after
such assignment, the assigning Owner shall be relieved of
28
all obligations under this Agreement arising or accruing after such assignment.
17.8 Authorized Representatives. Any consent, approval, authorization, or
--------------------------
other action required or permitted to be given or taken under this Agreement by
the Manager or the Owner, as the case may be, shall be given or taken by the
authorized repre sentative of each. For purposes of this Agreement, (a) the
authorized representative of the Manager shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇; (b) the
authorized representative of the Owner shall be ▇▇▇ ▇. ▇▇▇▇▇, III, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, or ▇▇▇▇ ▇▇▇▇▇▇. Any party hereto may from time to time designate other
or replacement authorized representatives by written notice from its authorized
representative to the other parties hereto. The written statements and
representations of any authorized representative of the Manager or the Owner
shall for the purposes of this Agreement be binding upon such party for whom the
authorized representative purports to act, and the other parties hereto shall
have no obligation or duty whatsoever to inquire into the authority of any such
representative to take any action which he proposes to take, regardless of
whether such representative actually has the authority to take any such action;
and the Manager and the Owner shall be entitled to rely upon any direction,
authorization, consent, approval, or disapproval given by any authorized
representative of the Manager or the Owner, as the case may be, in connection
with any matter arising out of or in connection with this Agreement or the
Project.
17.9 Terminology. All personal pronouns used in this Agreement, whether used
-----------
in the masculine, feminine, or neuter gender, shall include all other genders;
and all terms used herein in the singular shall include the plural, and vice
versa.
17.10 Time of Essence. Time is of the essence of this Agreement.
---------------
29
IN WITNESS WHEREOF, the parties hereto have executed and sealed this Agreement
as of the day, month and year first above written.
"MANAGER":
-------
ADEVCO CORPORATION,
a Georgia corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: President
----------------------------
[CORPORATE SEAL]
"OWNER":
-----
▇▇▇▇▇ DEVELOPMENT CORPORATION,
a Georgia corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III (SEAL)
--------------------------
▇▇▇ ▇. ▇▇▇▇▇, III,
President
30