Management Agreement - Primecore Mortgage Trust Inc. and Primecore Funding Group Inc.
Management Agreement
This Agreement is dated as of October 1, 2000, between Primecore
Mortgage Trust, Inc., a Maryland corporation (the "Company" or the "REIT"), and
Primecore Funding Group, Inc., a California corporation (the "Manager"), and
amends the Management Agreement dated March 30, 1999.
The Company wishes to continue its retention of the Manager to manage
the investments of the Company and to perform administrative services for the
Company on the following terms.
Section 1. Definitions:
(a) "affiliate" means, with respect to any person, another person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with such person.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "governing instruments" means the articles or certificate of
incorporation or other charter, as the case may be, and bylaws of the Company
and its subsidiaries.
(d) "mortgage loans" means construction, mixed use, land acquisition
and development loans primarily secured by mortgages or deeds of trust on real
estate properties.
(e) "REIT" means Real Estate Investment Trust as defined under
Section 856 of the Code.
(f) "REIT Provisions of the Code" refers to Sections 856 through 860
of the Code.
(g) "unaffiliated directors" refers to those members of the Board of
Directors of the Company, if any, who are not officers or employees of the
Company nor officers, directors or affiliates of the Manager.
Section 2. General Duties of the Manager.
(a) Administrative Services Provided by the Manager. The Manager will
be responsible for the day-to-day operations of the Company subject to oversight
by the Company's Board of Directors and shall perform services relating to the
assets and operations of the Company as may be appropriate, including:
(1) representing the Company in connection with the purchase
of construction and other mortgage loans;
(2) in accordance with the directions of the Company's Board
of Directors, investing or reinvesting any money of the Company;
1
<PAGE>
(3) furnishing reports and statistical and economic research
to the Company regarding the Company's real estate investment
activities and the performance of its portfolio of mortgage loans;
(4) administering the day-to-day operations of the Company
and performing administrative functions necessary in the management of
the Company, including the collection of revenues, the payment of the
Company's expenses, debts and obligations and the maintenance of
appropriate computer services to perform such administrative functions;
(5) counseling the Company in connection with policy
decisions to be made by the Board of Directors;
(6) overseeing the servicing of the Company's construction
and other mortgage loans;
(7) establishing underwriting, appraisal and quality control
procedures for the construction and other mortgage loans acquired
by the Company;
(8) conducting a legal document review of each mortgage loan
acquired to verify the accuracy and completeness of the information
contained in the security instruments and other pertinent documents in
the mortgage loan file;
(9) providing the Company with data processing, legal and
administrative services to the extent required to implement the
business strategy of the Company;
(10) providing all actions necessary for compliance by the
Company with all federal, state and local regulatory requirements
applicable to the Company in respect of its business activities,
including maintaining books and records and preparing or causing to be
prepared all financial statements required under applicable regulations
and contractual undertakings;
(11) providing all actions necessary to enable the Company to
make required federal, state and local tax filings and reports and
generally enable the Company to maintain its status as a REIT,
including, but not limited to, soliciting stockholders for required
information to the extent required by the REIT provisions of the Code;
(12) communicating on behalf of the Company with the
stockholders of the Company as required to satisfy any reporting
requirements and to maintain effective relations with such
stockholders; and
(13) performing such other services as may be required from
time to time for management and other activities relating to the assets
and growth of the Company as the Board of Directors shall reasonably
request or the Manager shall deem appropriate under the particular
circumstances.
(b) Administrative Services Provided by Subcontractors. The
Manager may enter into subcontracts with other parties to provide any such
services to the Company, so long as it exercises reasonable care in the
selection of such subcontractors.
2
<PAGE>
(c) Cooperation of the Company. The Company agrees to take all actions
reasonably required to permit the Manager to carry out its duties and
obligations. The Company further agrees to make available all materials
reasonably required to enable the Manager to satisfy its obligations to deliver
financial statements and any other information or reports with respect to the
Company.
Section 3. Additional Activities of the Manager. Nothing in this
agreement shall prevent the Manager or any of its officers, directors, employees
or affiliates from engaging in other businesses or from rendering services of
any kind to any other person or entity, including the purchase of, or advisory
service to others investing in, any type of real estate investment, including
investments which meet the principal investment objectives of the Company,
except that the Manager and its officers, directors and employees shall not
provide any such services to any mortgage REIT other than the Company or another
REIT sponsored by the Manager or its affiliates which has operating policies and
strategies different in one or more material respects from those of the Company.
Directors, officers, employees and agents of the Manager or affiliates of the
Manager may serve as trustees, directors, officers, employees, agents, nominees
or signatories for the Company or any subsidiary of the Company, to the extent
permitted by their governing instruments, as from time to time amended, or by
any resolutions duly adopted by the Board of Directors pursuant to the Company's
governing instruments.
Section 4. Bank Accounts. At the direction of the Board of Directors,
the Manager may establish and maintain one or more bank accounts in the name of
the Company or any subsidiary of the Company, and may collect and deposit into
any such account or accounts, and disburse funds from any such account or
accounts, under such terms and conditions as the Board of Directors may approve;
and the Manager shall from time to time render appropriate accountings of such
collections and payments to the Board of Directors and, upon request, to the
auditors of the Company or any subsidiary of the Company.
Section 5. Records. The Manager shall maintain appropriate books of
account and records relating to services performed, and such books of account
and records shall be accessible for inspection by representatives of the Company
or any subsidiary of the Company at any time during normal business hours.
Section 6. Compensation of the Manager. Beginning January 1, 2001, the
Manager shall receive a monthly management fee equal to the sum of (1) .25% per
month, or 3% per annum, of the total amount of the Company's interest in the
face amount of the notes which evidence the outstanding mortgage loan portfolio
balance, as calculated by the Manager and payable on the last day of each month.
Section 7. Expenses.
(a) Expenses Borne by the Manager. Without regard to the
compensation received by the Manager, the Manager shall bear the following
expenses:
(1) Employment expenses of the personnel employed by the
Manager, including, but not limited to, salaries, wages, payroll taxes,
and the cost of employee benefit plans;
3
<PAGE>
(2) Rent, telephone, utilities, office furniture, equipment
and machinery (including computers, to the extent utilized) and other
office expenses (such as asset/liability software, modeling software
and other software and hardware) of the Manager needed in order to
perform its duties as set forth herein;
(3) Bookkeeping fees and expenses including any costs of
computer services, other than in connection with communications to
security holders of the Company;
(4) Miscellaneous administrative expenses incurred in
supervising and monitoring the Company's investments or any
subsidiary's investments or relating to performance by the Manager of
its functions;
(5) Fees and expenses paid to advisors and independent
contractors, consultants, managers, and other agents engaged by the
Manager for the account of the Company or any subsidiary of the
Company;
(6) Expenses connected with the acquisition of the Company's
assets and mortgage loans;
(7) Expenses related to the servicing of the Company's
mortgage loans; and
(8) Travel and related expenses of personnel of the Manager
when attending meetings or performing other business activities which
relate to the Company or any subsidiary of the Company.
(b) Expenses Borne by the Company. The Company or any subsidiary of the
Company shall pay all of its expenses except those which are the specific
responsibility of the Manager pursuant to this agreement; and, without limiting
the generality of the foregoing, it is specifically agreed that the following
expenses of the Company or any subsidiary of the Company shall not be paid by
the Manager:
(1) The cost of borrowed money;
(2) All taxes applicable to the Company or any subsidiary of
the Company including interest and penalties;
(3) Legal, accounting and auditing fees and expenses
relating to the Company's or any subsidiary's operations;
(4) Expenses relating to any office or office facilities
maintained by the Company or any subsidiary of the Company exclusive of
the office of the Manager;
(5) Expenses connected with the ownership and disposition of
the Company's or any subsidiary's assets, including, but not limited
to, costs of completion, foreclosure, maintenance, repair and
improvement of property and premiums for insurance on property owned by
the Company or any subsidiary of the Company;
(6) Legal, audit, accounting, underwriting, brokerage,
listing, rating agency, registration and other fees, printing,
engraving and other expenses and taxes incurred in connection with the
4
<PAGE>
issuance, distribution, transfer, registration and stock exchange
listing of the Company's or any subsidiary's equity securities or debt
securities;
(7) The expenses of organizing, modifying or dissolving the
Company or any subsidiary of the Company;
(8) All insurance costs incurred in connection with the
Company or any subsidiary of the Company;
(9) Expenses connected with payments of dividends or
interest or distributions in any other form made or caused to be made
by the Board of Directors to holders of the securities of the Company
or any subsidiary of the Company;
(10) Expenses connected with the structuring and issuance of
mortgage securities by the Company or any subsidiary of the Company,
including but not limited to trustee's fees, insurance premiums, and
costs of required credit enhancements;
(11) Travel and related expenses of the directors of the
Company when attending meetings or performing other business activities
which relate to the Company;
(12) All expenses of third parties connected with
communications to holders of equity securities or debt securities of
the Company or any subsidiary of the Company and the other bookkeeping
and clerical work necessary in maintaining relations with holders of
such securities and in complying with the continuous reporting and
other requirements of governmental bodies or agencies, including any
costs of computer services in connection with this function, the cost
of printing and mailing certificates for such securities and proxy
solicitation materials and reports to holders of the Company's or any
subsidiary's securities and reports to third parties required under any
indenture to which the Company or any subsidiary of the Company is a
party;
(13) Transfer agent's and registrar's fees and charges;
(14) Fees and expenses paid to trustees or directors of the
Company or any subsidiary of the Company, the cost of director and
officer liability insurance and premiums for fidelity and errors and
omissions insurance;
(15) Any judgment rendered against the Company or any
subsidiary of the Company, or against any trustee or director of the
Company or any subsidiary of the Company in his capacity as such for
which the Company or any subsidiary of the Company is required to
indemnify such trustee or director, or any court or governmental
agency; and
(16) Other miscellaneous expenses of the Company or any
subsidiary of the Company that are not specified expenses of the
Manager under this agreement.
5
<PAGE>
Section 8. Limits of Manager Responsibility; Indemnification.
The Manager assumes no responsibility under this agreement other than
to render the services called for in good faith and shall not be responsible for
any action of the Board of Directors in following or declining to follow any
advice or recommendations of the Manager. The Manager, its directors, officers,
stockholders and employees will not be liable to the Company, any subsidiary of
the Company, its subsidiary's stockholders or the unaffiliated directors for any
acts or omissions by the Manager, its directors, officers, stockholders or
employees under or in connection with this agreement, except by reason of acts
or omissions constituting bad faith, willful misconduct, gross negligence or
reckless disregard of their duties under this agreement. The Company and its
subsidiaries shall reimburse, indemnify and hold harmless the Manager, its
directors, officers, stockholders and employees of and from any and all
expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever, including, without limitation, attorneys' fees, in respect of
or arising from any acts or omissions of the Manager, its stockholders,
directors, officers and employees made in good faith in the performance of the
Manager's duties under this agreement and not constituting bad faith, willful
misconduct, gross negligence or reckless disregard of its duties.
Section 9. Term; Termination Fee.
(a) This amended agreement shall commence January 1, 2001 and shall
continue until January 1, 2004, and shall be renewed automatically for
successive one-year periods beginning January 1, 2004, unless a notice of
non-renewal is timely delivered as described below.
(b) In addition to such further liability or obligation of either party
to the other due upon termination of this agreement, if this agreement is
terminated without cause (as "cause" is defined below), the Company shall pay
the Manager a termination fee in an amount equal to the greater of (1) the fair
market value of this agreement determined by an independent appraisal or (2) ten
percent (10%) of the total face amount of the notes evidencing the mortgage loan
portfolio of the Company, each determined as of the date of notice of
non-renewal. Such appraisal shall be conducted by a nationally recognized
appraisal firm mutually agreed upon by the parties and the costs of such
appraisal shall be borne equally by the parties. If the parties are unable to
agree upon such appraisal firm within 30 days following delivery of the notice
of non-renewal, then each party shall, as soon as reasonably practicable, but in
no event more than 45 days following delivery of the notice of non-renewal,
choose a nationally-recognized independent appraisal firm to conduct an
appraisal. In such event, (1) the fair market value amount shall be deemed to be
the average of the appraisals as conducted by each party's chosen appraiser and
(2) each party shall pay the costs of its appraiser so chosen. Any appraisal
shall be performed no later than 45 days following selection of the appraiser or
appraisers. The termination fee payable by the Company shall be paid within 30
days following receipt of the final appraisal to be obtained.
Section 10. Termination by Company for Cause. At the option of the
Company, this agreement shall be and become terminated upon written notice of
termination to the Manager if any of the following events shall occur.
Termination for any of these events shall constitute termination for "cause":
6
<PAGE>
(a) if a majority of the unaffiliated directors, if any, determines
that the Manager has violated this agreement in any material respect and, after
notice of such violation, the Manager has failed to cure such violation within
60 days; or
(b) there is entered an order for relief or similar decree or order with respect
to the Manager by a court having competent jurisdiction in an involuntary case
under the federal bankruptcy laws as now or hereafter constituted or under any
applicable federal or state bankruptcy, insolvency or other similar laws; or the
Manager:
(1) ceases, or admits in writing its inability, to pay its
debts as they become due and payable, or makes a general assignment for
the benefit of, or enters into any composition or arrangement with,
creditors;
(2) applies for, or consents, by admission of material
allegations of a petition or otherwise, to the appointment of a
receiver, trustee, assignee, custodian, liquidator or sequestrator, or
other similar official, of the Manager or of any substantial part of
its properties or assets, or authorizes such an application or consent,
or proceedings seeking such appointment are commenced without such
authorization, consent or application against the Manager and continue
undismissed for 60 days;
(3) authorizes or files a voluntary petition in bankruptcy,
or applies for or consents, by admission of material allegations of a
petition or otherwise, to the application of any bankruptcy,
reorganization, arrangement, readjustment of debt, insolvency,
dissolution, liquidation or other similar law of any jurisdiction, or
authorizes such application or consent, or proceedings to such end are
instituted against the Manager without such authorization, application
or consent and are approved as properly instituted and remain
undismissed for 60 days or result in adjudication of bankruptcy or
insolvency; or
(4) permits or suffers all or any substantial part of its
properties or assets to be sequestered or attached by court order and
the order remains undismissed for 60 days. If any of the events
specified above shall occur, the Manager shall give prompt written
notice thereof to the Board of Directors upon the happening of such
event.
Section 11. Action Upon Termination. From and after the effective date
of termination of this agreement, except as otherwise specified, the Manager
shall not be entitled to compensation for further services, but shall be paid
all compensation accruing to the date of termination. Upon such termination, the
Manager shall:
(a) after deducting any accrued compensation and reimbursement for its
expenses to which it is then entitled, pay over to the Company or any subsidiary
of the Company all money collected and held for the account of the Company or
any subsidiary of the Company pursuant to this agreement;
(b) deliver to the Board of Directors a full accounting, including a
statement showing all payments collected by it and a statement of all money held
by it, covering the period following the date of the last accounting furnished
to the Board of Directors with respect to the Company or any subsidiary of the
Company; and
7
<PAGE>
(c) deliver to the Board of Directors all property and documents of the
Company or any subsidiary of the Company then in the custody of the Manager.
Section 12. Release of Money or Other Property Upon Written Request.
The Manager agrees that any money or other property of the Company or any
subsidiary of the Company held by the Manager under this agreement shall be held
by the Manager as custodian for the Company or such subsidiary, and the
Manager's records shall be appropriately marked clearly to reflect the ownership
of such money or other property by the Company or such subsidiary. Upon the
receipt by the Manager of a written request signed by a duly authorized officer
of the Company requesting the Manager to release to the Company or any
subsidiary of the Company any money or other property then held by the Manager
for the account of the Company or any subsidiary of the Company under this
Agreement, the Manager shall release such money or other property to the Company
or such subsidiary of the Company within a reasonable period of time, but in no
event later than the later to occur of (1) 30 days following such request and
(2) the earliest time following such request that remittance will not cause the
Manager to violate any law or breach any agreement to which it or the Company is
a party. The Manager shall not be liable to the Company, any subsidiaries of the
Company, the unaffiliated directors, or the Company's or its subsidiaries'
stockholders for any acts performed or omissions to act by the Company or any
subsidiary of the Company in connection with the money or other property
released to the Company or any subsidiary of the Company and not constituting
bad faith, willful misconduct, gross negligence or reckless disregard of its
duties. The Company and any subsidiary of the Company shall indemnify the
Manager, its directors, officers, stockholders and employees against any and all
expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever, which arise in connection with the Manager's release of such
money or other property to the Company or any subsidiary of the Company unless
such expenses, losses, damages, liabilities, demands, charges and claims arise
in connection with acts or omissions which constitute bad faith, willful
misconduct, gross negligence or reckless disregard of its duties.
Indemnification pursuant to this provision shall be in addition to any right of
the Manager to indemnification under this agreement.
Section 13. Representations and Warranties.
(a) The Company represents and warrants to the Manager as follows:
(1) The Company is duly organized, validly existing and in
good standing under the laws of Maryland, has the power to own its
assets and to transact the business in which it is now engaged and is
duly qualified and in good standing under the laws of each jurisdiction
where its ownership or lease of property or the conduct of its business
requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material
adverse effect on the business operations, assets or financial
condition of the Company and its subsidiaries, taken as a whole. The
Company does not do business under any fictitious business name.
(2) The Company has the power and authority to execute,
deliver and perform this agreement and all obligations required and has
taken all necessary action to authorize this agreement and the
execution, delivery and performance of this agreement and all
obligations required. Except as shall have been obtained, no consent of
8
<PAGE>
any other person including, without limitation, stockholders and
creditors of the Company, and no license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required by
the Company in connection with this agreement or the execution,
delivery, performance, validity or enforceability of this agreement and
all obligations required. This agreement has been, and each instrument
or document required will be, executed and delivered by a duly
authorized officer of the Company, and this agreement constitutes, and
each instrument or document required when executed and delivered
hereunder will constitute, the legally valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms.
(3) The execution, delivery and performance of this agreement
and the documents or instruments required will not violate any
provision of any existing law or regulation binding on the Company, or
any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on the Company, or the governing
instruments of, or any securities issued by, the Company or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Company is a party or by which the Company or
any of its assets may be bound, the violation of which would have a
material adverse effect on the business operations, assets or financial
condition of the Company and its subsidiaries, taken as a whole, and
will not result in, or require, the creation or imposition of any lien
on any of its property, assets or revenues pursuant to the provisions
of any such mortgage, indenture, lease, contract or other agreement,
instrument or undertaking (other than the pledge of amounts payable to
the Manager to secure the Manager's obligations to its lenders).
(a) The Manager represents and warrants to the Company that:
(1) The Manager is duly organized, validly existing and in
good standing under the laws of California, has the corporate power to
own its assets and to transact the business in which it is now engaged
and is duly qualified to do business and is in good standing under the
laws of each jurisdiction where its ownership or lease of property or
the conduct of its business requires such qualification, except for
failures to be so qualified, authorized or licensed that could not in
the aggregate have a material adverse effect on the business
operations, assets or financial condition of the Manager and its
subsidiaries, taken as a whole. The Manager does not do business under
any fictitious business name.
(2) The Manager has the corporate power and authority to
execute, deliver and perform this agreement and all obligations
required and has taken all necessary corporate action to authorize this
agreement and the execution, delivery and performance of this agreement
and all obligations required. Except as shall have been obtained, no
consent of any other person including, without limitation, stockholders
and creditors of the Manager, and no license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required by
the Manager in connection with this agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and
all obligations required. This agreement has been and each instrument
or document required will be executed and delivered by a duly
authorized officer of the Manager, and this agreement constitutes, and
9
<PAGE>
each instrument or document required when executed and delivered will
constitute, the legally valid and binding obligation of the Manager
enforceable against the Manager in accordance with its terms.
(3) The execution, delivery and performance of this agreement
and the documents or instruments required, will not violate any
provision of any existing law or regulation binding on the Manager, or
any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on the Manager, or the governing
instruments of, or any securities issued by, the Manager or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Manager is a party or by which the Manager or
any of its assets may be bound, the violation of which would have a
material adverse effect on the business operations, assets, or
financial condition of the Manager and its subsidiaries, taken as a
whole, and will not result in, or require, the creation or imposition
of any lien on any of its property, assets or revenues pursuant to the
provisions of any such mortgage indenture, lease, contract or other
agreement, instrument or undertaking.
Section 14. Notices. Unless expressly provided otherwise, all notices,
requests, demands and other communications required or permitted under this
agreement shall be in writing and shall be deemed to have been duly given, made
and received when (1) delivered by hand or (2) upon actual receipt of registered
or certified mail, postage prepaid. The parties may deliver to each other notice
by electronically transmitted facsimile copies provided that such facsimile
notice is followed within twenty-four hours by any type of notice otherwise
provided for in this paragraph. Any notice shall be duly addressed to the
parties as follows:
(a) If to the Company:
99 El Camino Real
Menlo Park, CA 94025
Attn: Board of Directors
Fax: (650) 328-3066
(b) If to the Manager:
99 El Camino Real
Menlo Park, CA 94025
Attn: Susan Fox, President
Fax: (650) 328-3066
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address.
Section 15. Assignments. Except as set forth in this section, this
agreement shall terminate automatically in the event of its assignment, in whole
or in part, by the Manager, other than the pledge of amounts payable to the
Manager to secure the Manager's obligations to its lenders, unless such
assignment is consented to in writing by the Company. Any such consented
assignment shall bind the assignee in the same manner as the Manager is bound.
10
<PAGE>
In addition, the assignee shall execute and deliver to the Company a counterpart
of this agreement naming such assignee as Manager. This agreement shall not be
assigned by the Company without the prior written consent of the Manager, except
in the case of assignment by the Company to a REIT or other organization which
is a successor, by merger, consolidation or purchase of assets, to the Company,
in which case such successor organization shall be bound by this agreement and
by the terms of such assignment in the same manner as the Company is bound.
Section 16. Entire Agreement. This agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms. This agreement may not be modified or
amended other than by an agreement in writing.
Section 17. Controlling Law. This agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed, interpreted and enforced in accordance with the laws of the
State of California.
Section 18. Waivers. Neither the failure nor any delay on the part of a
party to exercise any right, remedy, power or privilege under this agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
Section 19. Execution in Counterparts. This agreement may be executed
in any number of counterparts.
11
<PAGE>
Section 20. Provisions Separable. The provisions of this agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Primecore Mortgage Trust, Inc.,
a Maryland corporation
By /s/SUSAN FOX
----------------------------------
Susan Fox, President
Primecore Funding Group, Inc.
a California corporation
By /s/SUSAN FOX
----------------------------------
Susan Fox, President
Management Agreement
October 1, 2000
12