Exhibit 10.4
ASSET MANAGEMENT AGREEMENT
This Asset Management Agreement (the "Agreement") is entered into as of
this 1st day of January, 2002 by and between Xxxxxxx Asset Management LLC, a
Delaware limited liability company ("Xxxxxxx") and Winthrop Financial
Associates, A Limited Partnership, a Maryland limited partnership ("Winthrop").
R E C I T A L S:
A. Pursuant to that certain Amended and Restated Asset Management
Agreement (the "Xxxxxxx Asset Agreement"), dated as of January 12, 2000, by and
between Xxxxxxx and each of the Partnerships listed on Schedule 1 thereto (the
"Prior Partnerships"), Xxxxxxx has been retained to provide, among other things,
asset management and investor services for the Prior Partnerships;
B. As of this date, 90 of the Prior Partnerships have been merged into
subsidiary partnerships ("Subsidiary Partnerships") of The Xxxxxxx Master
Limited Partnership (the Prior Partnerships that have not been so merged,
together with the Subsidiary Partnerships, are hereinafter referred to as the
"Partnerships");
X. Xxxxxxx will continue to perform services for the Partnerships pursuant
to the Xxxxxxx Asset Agreement;
X. Xxxxxxx desires to retain Winthrop to assist it in performing certain
of the services required under the Xxxxxxx Asset Agreement, all subject to the
terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties do hereby agree as follows:
1. Services. (a) Winthrop shall provide those duties and services which
Xxxxxxx shall request from time to time and which are required to be provided by
Xxxxxxx under Section 1(a) of the Xxxxxxx Asset Agreement.
(b) Winthrop shall make available to Xxxxxxx use of Winthrop's
employees, office space, supplies, telephones, facsimile machines, copy machines
and other office equipment and insurance during normal business hours in
connection with the providing of asset management and investor relation services
under the Xxxxxxx Asset Agreement.
(c) Notwithstanding anything herein to the contrary, Winthrop shall
not be authorized to bind Xxxxxxx or a Partnership to the terms of any agreement
and Winthrop shall at all times act at the direction of Xxxxxxx.
(d) In performing the services required to be performed by it
pursuant to this Agreement, Winthrop shall perform such services in accordance
with all applicable laws, rules and regulations, and in a manner that is
consistent with all applicable provisions of the partnership agreement of the
applicable Partnership.
(e) No provision of this Agreement shall be construed as stating or
implying that Winthrop is acting or substituting for the general partner of a
Partnership, or that Winthrop has assumed any fiduciary duty or fiduciary
responsibility that the general partner of a Partnership, may have as to such
Partnership. Nothing contained in this Agreement shall be deemed or construed to
require Winthrop to perform the services of attorneys, certified public
accountants, architects, contractors, engineers or other professions requiring
special license or make Winthrop responsible for the failure of the various
professionals hired by a Partnership, Xxxxxxx or Winthrop, on behalf of such
Partnership or Xxxxxxx, to properly perform or provide their services.
2. Compensation for Services. (a) For and in consideration of the services
to be provided by Winthrop pursuant to this Agreement, and in addition to any
other compensation which Winthrop may be entitled to receive pursuant to any
other agreements or understandings between Xxxxxxx and Winthrop, Winthrop shall
be entitled to receive an annual fee (the "Fee") equal to $1,800,000, as such
amount shall be (i) increased on each January 1 during the term of this
Agreement if the Index (as hereinafter defined) for any December during the term
of this Agreement is greater than the Index for the December of the immediately
preceding year, by an amount equal to (a) the previous years Fee multiplied by
(b) a fraction, the numerator of which shall be the excess of the Index for such
first mentioned December over the Index for such December of the immediately
preceding year and the denominator of which shall be the Index for such December
of the immediately preceding year.
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(b) The Fee shall be payable monthly, in advance, on the first day
of each month during the term (each, a "Payment Date"). In the event that this
Agreement shall be terminated on a date other than on the last day of a calendar
month, then the Fee for such month shall be prorated accordingly. In the event
the Fee is not paid when due, then such unpaid Fee shall bear interest at the
rate of nine (9%) percent per annum compounded monthly from the end of such
calendar year until paid.
(c) As used herein, "Index" means the Consumer Price Index for All
Urban Consumers, All Items, of the United States Department of Labor's Bureau of
Labor Statistics in effect and generally published for the month in question. If
the Index is no longer published or if any of the separate components utilized
to compute the Index are altered or removed after the date hereof, then another
price index generally recognized as authoritative and computed as nearly as
practicable in the same manner as the Index shall be substituted by agreement of
the Partnership and Xxxxxxx, it being intended by the parties that the
calculations of an increase in the Index shall be made using a consistent index
for measurement.
3. Term. The term of this Agreement shall be co-terminus with the Xxxxxxx
Asset Agreement.
4. Indemnification; Exculpation. (a) Xxxxxxx agrees (i) to defend, hold
harmless and indemnify Winthrop, its affiliates and all officers, directors,
partners, agents and employees of Winthrop from and against the actual costs,
expenses and damages, including, but not limited
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to, reasonable attorney's fees and disbursements, incurred by any of them (as a
consequence of any claims made or action filed against them which result from or
arise out of any of actions taken by any of them in connection with the carrying
out Winthrop's duties hereunder or under the express direction of Xxxxxxx,
however, that such indemnification shall not apply with respect to any criminal
act, gross negligence or willful misconduct of Winthrop; and (ii) to defend
promptly and diligently, at Xxxxxxx'x sole expense, any claim, action or
proceeding brought against Winthrop, arising out of or connected with any of the
foregoing, and to hold harmless and fully indemnify Winthrop from any judgment,
loss or settlement on account thereof. The foregoing provisions of this
subparagraph 4(a) shall survive the expiration or termination of Winthrop's
appointment pursuant to this Agreement, but this shall not be construed to mean
that any of Xxxxxxx'x liability does not survive as to other provisions of this
Agreement. Nothing contained in this subparagraph 4(a) shall require Xxxxxxx to
indemnify Winthrop for any claim (i) which is covered by any insurance
maintained by a Partnership, Xxxxxxx or any of their affiliates, or (ii) which
is proven to be based upon the gross negligence or willful misconduct of
Winthrop.
(b) Except with respect to (i) any matter of the type covered by any
insurance maintained by a Partnership, Xxxxxxx or any of their affiliates,
Winthrop agrees: (y) to reimburse Xxxxxxx upon demand for any monies which it is
required to pay out, either in connection with, or as an expense in defense of
any claim, civil or criminal action, proceeding, charge or prosecution made,
instituted or maintained against such Partnership and/or Xxxxxxx arising out of
Winthrop's proven gross negligence or willful misconduct, and (z) to hold
harmless and fully indemnify Xxxxxxx from any judgment, loss or settlement in
connection with any of the foregoing. The foregoing provisions of this
subparagraph shall survive the expiration or termination of Winthrop's
appointment pursuant to this Agreement, but this shall not be construed to mean
that Winthrop's liability does not survive as to other provisions of this
Agreement. Nothing contained in this subparagraph shall relieve Xxxxxxx from any
of its obligations under this Agreement, or require Winthrop to indemnify
Xxxxxxx for any claim which is based upon the negligence of willful misconduct
of Xxxxxxx or a Partnership.
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(c) Notwithstanding anything to the contrary contained herein,
Winthrop recognizes and agrees that the obligations of Xxxxxxx to Winthrop
hereunder shall be satisfied only out of any cash flow of Xxxxxxx. It is
expressly understood and agreed that the members of Xxxxxxx and the partners or
members of any members of Xxxxxxx or officers, directors, shareholders,
partners, or members of any of such partners or members shall have no personal
liability with respect to Xxxxxxx'x obligations to Winthrop hereunder (except
for the distribution of company assets) and, as a material inducement to Xxxxxxx
to enter into this Agreement, Winthrop shall not seek any recourse for
satisfaction of Xxxxxxx'x obligations to Winthrop hereunder from any members of
Xxxxxxx, but shall limit its recourse to the assets of Xxxxxxx.
(d) Notwithstanding any provision of this Agreement to the contrary,
no partner of Winthrop nor any member, officer, director, shareholder, or
partner of any such partner shall have any personal liability under, arising out
of or in connection with this Agreement, any default or breach by Winthrop
hereunder unless such default or breach resulted from the gross negligence or
willful misconduct of any such member, partner, officer, director or
shareholder.
5. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective permitted successors
and assigns.
6. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
8. Independent Contractor Relationship. This Agreement is not intended to
and shall not create any relationship of principal and agent, partnership, joint
venture, employer and employee or any other relationship, association or
affiliation whatsoever between the parties, except for that of independent
contractor.
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9. Further Assurances. Each party covenants on behalf of itself, its
successors and assigns, to execute, with acknowledgment or affidavit if
required, any and all documents and writings which may be necessary or desirable
to carry out the purposes of this Agreement.
10. Severability. In the event that any provision of this Agreement, or
the application of such provision to any person, entity or set of circumstances,
shall be deemed invalid, unlawful or unenforceable to any extent, the remainder
of this Agreement, and the application of all such provisions to persons,
entities or circumstances other than those determined invalid, unlawful or
unenforceable shall not be affected and shall continue to be enforceable to the
fullest extent permitted by law.
11. Notices. Any notice or communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, by overnight delivery or courier service, or delivered (in
person or by telecopy, telex or similar telecommunication equipment) against
receipt to the party to whom it is to be given at the address first above given;
or to such other address as such party shall have furnished in writing in
accordance with the provisions of this Paragraph 11. Any notice or other
communication given by certified mail shall be deemed given three day after the
time of certification thereof, except for notice of changing of a party's
address which will be deemed given at the time of receipt thereof. Any notice
given by any other means permitted by this Paragraph 11 shall be deemed given at
the time of the receipt thereof.
12. Titles and Captions. Paragraph titles or captions contained in this
Agreement are inserted only as a matter of convenience and for reference. Such
titles and captions in no way define, limit, extend or describe the scope of
this Agreement nor the intent of any provisions hereof.
13. Attorneys' Fees. If any party hereto brings an action to enforce the
terms hereof or to obtain a declaration of the rights of such party hereunder,
the prevailing party in any such action, on trial or appeal, shall be entitled
to such party's reasonable attorneys' fees to be paid by the losing party.
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14. Confidentiality. Winthrop and Xxxxxxx shall treat this Agreement and
all information relating hereto as confidential and not to disclose any such
information without the prior written consent of the other party, except that
the foregoing limitation shall not apply to information requested by any current
or prospective lender, any governmental authority having or asserting
jurisdiction over Xxxxxxx, Xxxxxxxx or any professional advisor employed by any
of the foregoing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date hereof.
XXXXXXX ASSET MANAGEMENT LLC
By: MLP Manager Corp.
Its manager
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
WINTHROP FINANCIAL ASSOCIATES,
A LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
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