Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022
FIRST AMENDMENT TO MAINTENANCE AGREEMENT BETWEEN TAYFUN
CORPORATION AND BREMEN HOUSE TEXAS, INC.
THIS AMENDMENT TO MAINTENANCE AGREEMENT (this "Amendment")
is made and entered into as of the ____ day of August, 2017, by and between Bremen House
Texas, Inc., a Delaware corporation ("Owner"), and Tayfun Corporation, a Texas corporation
("Manager").
RECITALS
A. Owner is the owner of that certain real property and improvements, thereon
commonly known as 10045 N. MacArthur Blvd. at the Crossroad Shopping Center in Irving,
Texas and 2425-2435 S.E. Green Oaks Blvd., at the Green Oaks Shopping Center in Arlington,
TX (collectively, the "Property").
B. Owner and Manager desire to amend that certain Maintenance Agreement
executed by the parties hereto, and effective since 1993, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
1. EXCLUSIVE APPOINTMENT. Manager agrees to act as Owner's exclusive
on-site agent to manage, operate and maintain the Property. Manager agrees to exercise the
highest degree of professional competence in managing the Property so as to provide Owner with
the maximum economic return consistent with proper management. Manager agrees,
notwithstanding the authority granted herein, to confer regularly with Owner or its designee in
the performance of Manager's duties in order to remain fully informed of the policies and
directives of Owner with respect to the Property.
2. DUTIES OF MANAGER. Manager's duties with respect to the Property shall
include, without limitation, all of the following:
2.1. Operation And Maintenance.
2.1.1. Employees. Manager shall, on behalf of and at the cost of
Owner, hire, discharge and supervise all labor, employees and independent contractors
reasonably necessary to properly maintain and operate the Property, subject to the obligations of
the tenants under the leases (the "Leases") of space in the Property, in accordance with the
provisions in this Agreement and the directives of Owner.
2.1.2. Nondisclosure. Manager shall take all reasonable steps to ensure
that neither Manager nor any of Manager's employees or the independent-contractors employed
by Manager hereunder at any time discloses or otherwise makes use of in any manner, whether
during or after the term of this Agreement, any information regarding Owner's business or
affairs without the prior written consent of Owner.
tenants'
2.1.3. Maintenance And Repair. Subject to the obligations
CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393169
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022
under the Manager shall cause the to be maintained at Owner's expense in first-
Leases, Property
class condition.
2.1.4. Services And Utilities. Manager shall contract on behalf of and
at the cost of Owner for all services and utilities necessary for the efficient operation and
maintenance of the Property, including but not limited to water, electricity, gas, fuel, telephone,
vermin extermination, rubbish hauling and window cleaning.
2.1.5. Compliance With Governmental Regulations. Manager, after
consultation with Owner or its designee and itsapproval and at the expense of Owner shall take
such action as may be necessary to comply promptly with any and all orders or requirements
affecting the Property of federal, state, county or municipal authorities or agencies having
jurisdiction with respect thereto made known to Owner and Manager. Manager shall not take
any action under this Paragraph, however, so long as Owner is contesting, or has, after prompt
written notification of the facts by Manager, affirmed its intention to contest any ouch order or
requirement.
2.2. Dealings with Tenants. Manager shall use. all diligent efforts to ensure
compliance by tenants with all provisions of their Leases, and shall promptly disclose to Owner
in writing any material violations thereof of which Manager has knowledge Manager shall
maintain regular businesslike relations with tenants and handle on behalf of Owner all:tenants
and handle on behalf of Owner all: tenant matters, including without limitation supervision of
tenants'
tenant improvements conducted at the expense and disposition of tenant requests.
Manager shall have no authority whatsoever to execute or agree to execute or effectuate any
amendment or modification of any Lease, deed of trust, easement or other document affecting
the Property.
2.2.1 Manager shall have and is hereby given the authority to collect
and to take reasonable steps to enforce the collection of all rental payments and other sums due
from tenants, including filing of unlawful detainer proceedings, to settle all disputes with tenants
when Owner is not reasonably available for consultation, to refund or retain security deposits at
Manager's discretion, and to do all necessary acts for the protection of the Owner in the payment
of and collection of said rentals.
2.2.2 At such time as an existing Lease terminates, Manager agrees to
use due diligence to lease and rent the vacated space upon the terms and conditions approved by
Owner.
2.3. Collections And Disbursements.
2.3.1. Collections. Manager shall use itsbest efforts to collect allrents,
revenues and other charges due to Owner with respect to the Property.
2.3.2. Delivery Of Collections. Manager shall promptly deliver to
Owner in the manner prescribed by Owner from time to time all monies collected from the
Property, including, at the option of Owner, into an account in the name of Owner. Manager
shall ensure that all collected checks shall be in the name of Owner.
CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393170
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022
2.3.3. Unauthorized Expenditures. With respect to any expense, cost or
obligation arising with respect to the Property in connection with any of the Manager's
obligations hereunder in an amount in excess of the amount for which Manager is authorized to
disburse funds, Manager shall promptly notify Owner or its designee with an appropriate request
for the issuance of a check in the amount required.
2.4 Financial Records And Reports.
2.4.1. Records. Manager agrees to keep accurate, complete and
separate records in accordance with reasonable accounting standards and procedures, showing
income and expenditures in connection with the operation of the Property. Owner shall have the
right, at any reasonable time, through its representatives or in person, to inspect any record of
Manager which in its opinion may verify the financial or monthly reports, including but not
limited to, all checks, bills, vouchers, statements, cash receipts, correspondence and all other
records in connection with the management of the Property.
2.4.2. Monthly And Annual Statements. Manager shall prepare and
remit to Owner a monthly statement showing in detail all receipts and disbursements for the
previous month, and an annual statement summarizing receipts and disbursements of the
preceding calendar year or portion thereof. Manager shall remit monthly, along with such
statements., copies of allreceipted bills.
2.4.3. Limitation Of Manager's Authority. Anything in this Agreement
to the contrary notwithstanding: (i)Manager shall not make any expenditure of funds, take any
action, or incur any obligation with respect to the Property which involves an amount in excess
of $1,000.00 without Owner's or its designee's prior written authorization; and (ii)Manager
shall have no authority whatsoever to execute or enter into agreements, contracts or
understandings with respect to the Property which remain in effect for a period in excess of one
(1) year from the date of execution.
3. COMPENSATION.
3.1. Fees. For services rendered pursuant to this Agreement, Owner shall
pay Manager three percent (3%) of the gross revenues collected or received from the Property
including income and collections from all sources, such as rentals and other charges, but
excluding insurance premiums, property taxes, common area maintenance charges and other
reimbursements. In addition to the fee set forth above, Owner and Manager agree that any
management fee payable to Manager in excess of 3% (the "Additional Fee") shall only be due
and payable to Manager in a given month to the extent there exists sufficient net cash flow from
the Property after the payment by Owner of allcurrent debt service and other operating expenses
of the Property for such month.
3.2 Extraordinary Services. Manager shall be separately compensated for
any extraordinary services, which are services other than those usually and customarily
performed by a property manager, rendered in connection with the Property.
CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393171
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022
4. TERM.
4.1. Basic Period. This Maintenance Agreement, as amended by this
Amendment, and Manager's authority and obligations hereunder shall become effective as of the
date hereof, and shall continue for a twelve (12) month period. At the end of twelve (12) months,
the Maintenance Agreement shall automatically renew for successive twelve (12) month periods
until terminated by either party pursuant to Section 4.2.
4.2. Early Termination. Either party to this Agreement may elect to cancel
and terminate this Agreement by giving written notice to the other party not less than thirty (30)
days prior to the date said termination is to be effective.
4.3. Termination Upon Sale. Owner shall notify Manager at least thirty (30)
days before an anticipated transfer of title of the Property. Upon such transfer of the title, this
Agreement shall automatically terminate.
4.4. Consequences Of Termination. Upon termination of this Agreement, it
is agreed: (i) that all of the records in the possession of Manager pertaining to the operation of
the Property, together with any property of Owner in Manager's possession shall be immediately
delivered to Owner; and (ii) that Manager's right to compensation shall immediately cease,
except for any amounts payable hereunder with respect to periods prior to the date of
termination.
5. MISCELLANEOUS.
5.1. Attorneys Fees. Should legal action or arbitration be necessary to
enforce or interpret any of the provisions of this Agreement, the prevailing party in such action
attorneys'
shall be entitled to recover fees and costs incurred therein.
5.2. Entire Agreement. This Agreement contains the entire understanding
between the parties and supersedes any prior understandings, promises and agreements between
them regarding the subject matter herein.
5.3. Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and shall be binding upon the parties hereto, their, heirs, executors, administrators,
successors and assigns.
5.4. Notices. All notices and other communications required or permitted in
this Agreement shall be in writing and Shall be deemed to have been duly given when delivered
personally or seventy-two (72) hours after being mailed, registered or certified mail, return
receipt requested, postage prepaid, to such addresses as either of the parties hereto may from
time to time in writing designate to the other party hereto.
5.5. Severability. Any provision of this Agreement which may be prohibited
by law or otherwise held invalid shall be ineffective only to the extent of such prohibition or
invalidity and shall not invalidate or otherwise render ineffective any or all of the remaining
provisions of this Agreement.
CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393172
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date firstabove written.
OWNER:
BREMEN HOUSE TEXAS, INC.
By:
Name: Billur Akipek
Title: Vice President
MANAGER:
TAYFUN CORPORATION
By:
Name: Pinar Nalbantoglu
Title: President
[DOCPROPERTY DOCXDOCID DMS=NetDocuments Format=<
Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022 FIRST AMENDMENT TO MAINTENANCE AGREEMENT BETWEEN TAYFUN CORPORATION AND BREMEN HOUSE TEXAS, INC. THIS AMENDMENT TO MAINTENANCE AGREEMENT (this "Amendment") is made and entered into as of the ____ day of August, 2017, by and between Bremen House Texas, Inc., a Delaware corporation ("Owner"), and Tayfun Corporation, a Texas corporation ("Manager"). RECITALS A. Owner is the owner of that certain real property and improvements, thereon commonly known as 10045 N. MacArthur Blvd. at the Crossroad Shopping Center in Irving, Texas and 2425-2435 S.E. Green Oaks Blvd., at the Green Oaks Shopping Center in Arlington, TX (collectively, the "Property"). B. Owner and Manager desire to amend that certain Maintenance Agreement executed by the parties hereto, and effective since 1993, upon the terms and conditions hereinafter set forth. NOW, THEREFORE, the parties agree as follows: 1. EXCLUSIVE APPOINTMENT. Manager agrees to act as Owner's exclusive on-site agent to manage, operate and maintain the Property. Manager agrees to exercise the highest degree of professional competence in managing the Property so as to provide Owner with the maximum economic return consistent with proper management. Manager agrees, notwithstanding the authority granted herein, to confer regularly with Owner or its designee in the performance of Manager's duties in order to remain fully informed of the policies and directives of Owner with respect to the Property. 2. DUTIES OF MANAGER. Manager's duties with respect to the Property shall include, without limitation, all of the following: 2.1. Operation And Maintenance. 2.1.1. Employees. Manager shall, on behalf of and at the cost of Owner, hire, discharge and supervise all labor, employees and independent contractors reasonably necessary to properly maintain and operate the Property, subject to the obligations of the tenants under the leases (the "Leases") of space in the Property, in accordance with the provisions in this Agreement and the directives of Owner. 2.1.2. Nondisclosure. Manager shall take all reasonable steps to ensure that neither Manager nor any of Manager's employees or the independent-contractors employed by Manager hereunder at any time discloses or otherwise makes use of in any manner, whether during or after the term of this Agreement, any information regarding Owner's business or affairs without the prior written consent of Owner. tenants' 2.1.3. Maintenance And Repair. Subject to the obligations CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393169 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022 under the Manager shall cause the to be maintained at Owner's expense in first- Leases, Property class condition. 2.1.4. Services And Utilities. Manager shall contract on behalf of and at the cost of Owner for all services and utilities necessary for the efficient operation and maintenance of the Property, including but not limited to water, electricity, gas, fuel, telephone, vermin extermination, rubbish hauling and window cleaning. 2.1.5. Compliance With Governmental Regulations. Manager, after consultation with Owner or its designee and itsapproval and at the expense of Owner shall take such action as may be necessary to comply promptly with any and all orders or requirements affecting the Property of federal, state, county or municipal authorities or agencies having jurisdiction with respect thereto made known to Owner and Manager. Manager shall not take any action under this Paragraph, however, so long as Owner is contesting, or has, after prompt written notification of the facts by Manager, affirmed its intention to contest any ouch order or requirement. 2.2. Dealings with Tenants. Manager shall use. all diligent efforts to ensure compliance by tenants with all provisions of their Leases, and shall promptly disclose to Owner in writing any material violations thereof of which Manager has knowledge Manager shall maintain regular businesslike relations with tenants and handle on behalf of Owner all:tenants and handle on behalf of Owner all: tenant matters, including without limitation supervision of tenants' tenant improvements conducted at the expense and disposition of tenant requests. Manager shall have no authority whatsoever to execute or agree to execute or effectuate any amendment or modification of any Lease, deed of trust, easement or other document affecting the Property. 2.2.1 Manager shall have and is hereby given the authority to collect and to take reasonable steps to enforce the collection of all rental payments and other sums due from tenants, including filing of unlawful detainer proceedings, to settle all disputes with tenants when Owner is not reasonably available for consultation, to refund or retain security deposits at Manager's discretion, and to do all necessary acts for the protection of the Owner in the payment of and collection of said rentals. 2.2.2 At such time as an existing Lease terminates, Manager agrees to use due diligence to lease and rent the vacated space upon the terms and conditions approved by Owner. 2.3. Collections And Disbursements. 2.3.1. Collections. Manager shall use itsbest efforts to collect allrents, revenues and other charges due to Owner with respect to the Property. 2.3.2. Delivery Of Collections. Manager shall promptly deliver to Owner in the manner prescribed by Owner from time to time all monies collected from the Property, including, at the option of Owner, into an account in the name of Owner. Manager shall ensure that all collected checks shall be in the name of Owner. CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393170 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022 2.3.3. Unauthorized Expenditures. With respect to any expense, cost or obligation arising with respect to the Property in connection with any of the Manager's obligations hereunder in an amount in excess of the amount for which Manager is authorized to disburse funds, Manager shall promptly notify Owner or its designee with an appropriate request for the issuance of a check in the amount required. 2.4 Financial Records And Reports. 2.4.1. Records. Manager agrees to keep accurate, complete and separate records in accordance with reasonable accounting standards and procedures, showing income and expenditures in connection with the operation of the Property. Owner shall have the right, at any reasonable time, through its representatives or in person, to inspect any record of Manager which in its opinion may verify the financial or monthly reports, including but not limited to, all checks, bills, vouchers, statements, cash receipts, correspondence and all other records in connection with the management of the Property. 2.4.2. Monthly And Annual Statements. Manager shall prepare and remit to Owner a monthly statement showing in detail all receipts and disbursements for the previous month, and an annual statement summarizing receipts and disbursements of the preceding calendar year or portion thereof. Manager shall remit monthly, along with such statements., copies of allreceipted bills. 2.4.3. Limitation Of Manager's Authority. Anything in this Agreement to the contrary notwithstanding: (i)Manager shall not make any expenditure of funds, take any action, or incur any obligation with respect to the Property which involves an amount in excess of $1,000.00 without Owner's or its designee's prior written authorization; and (ii)Manager shall have no authority whatsoever to execute or enter into agreements, contracts or understandings with respect to the Property which remain in effect for a period in excess of one (1) year from the date of execution. 3. COMPENSATION. 3.1. Fees. For services rendered pursuant to this Agreement, Owner shall pay Manager three percent (3%) of the gross revenues collected or received from the Property including income and collections from all sources, such as rentals and other charges, but excluding insurance premiums, property taxes, common area maintenance charges and other reimbursements. In addition to the fee set forth above, Owner and Manager agree that any management fee payable to Manager in excess of 3% (the "Additional Fee") shall only be due and payable to Manager in a given month to the extent there exists sufficient net cash flow from the Property after the payment by Owner of allcurrent debt service and other operating expenses of the Property for such month. 3.2 Extraordinary Services. Manager shall be separately compensated for any extraordinary services, which are services other than those usually and customarily performed by a property manager, rendered in connection with the Property. CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393171 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022 4. TERM. 4.1. Basic Period. This Maintenance Agreement, as amended by this Amendment, and Manager's authority and obligations hereunder shall become effective as of the date hereof, and shall continue for a twelve (12) month period. At the end of twelve (12) months, the Maintenance Agreement shall automatically renew for successive twelve (12) month periods until terminated by either party pursuant to Section 4.2. 4.2. Early Termination. Either party to this Agreement may elect to cancel and terminate this Agreement by giving written notice to the other party not less than thirty (30) days prior to the date said termination is to be effective. 4.3. Termination Upon Sale. Owner shall notify Manager at least thirty (30) days before an anticipated transfer of title of the Property. Upon such transfer of the title, this Agreement shall automatically terminate. 4.4. Consequences Of Termination. Upon termination of this Agreement, it is agreed: (i) that all of the records in the possession of Manager pertaining to the operation of the Property, together with any property of Owner in Manager's possession shall be immediately delivered to Owner; and (ii) that Manager's right to compensation shall immediately cease, except for any amounts payable hereunder with respect to periods prior to the date of termination. 5. MISCELLANEOUS. 5.1. Attorneys Fees. Should legal action or arbitration be necessary to enforce or interpret any of the provisions of this Agreement, the prevailing party in such action attorneys' shall be entitled to recover fees and costs incurred therein. 5.2. Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes any prior understandings, promises and agreements between them regarding the subject matter herein. 5.3. Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall be binding upon the parties hereto, their, heirs, executors, administrators, successors and assigns. 5.4. Notices. All notices and other communications required or permitted in this Agreement shall be in writing and Shall be deemed to have been duly given when delivered personally or seventy-two (72) hours after being mailed, registered or certified mail, return receipt requested, postage prepaid, to such addresses as either of the parties hereto may from time to time in writing designate to the other party hereto. 5.5. Severability. Any provision of this Agreement which may be prohibited by law or otherwise held invalid shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate or otherwise render ineffective any or all of the remaining provisions of this Agreement. CONFIDENTIAL AND PRIVILEGED AS TO THIRD PARTIES Brem00393172 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 924 RECEIVED NYSCEF: 12/15/2022 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date firstabove written. OWNER: BREMEN HOUSE TEXAS, INC. By: Name: Billur Akipek Title: Vice President MANAGER: TAYFUN CORPORATION By: Name: Pinar Nalbantoglu Title: President [DOCPROPERTY DOCXDOCID DMS=NetDocuments Format=<