ASSET MANAGEMENT AGREEMENT
Exhibit
10.3
This Asset Management Agreement
(“Agreement”) dated as of January 5, 2007, by and between FSP 000 Xxxx Xxxxxx
Xxxxx LLC, a Delaware limited liability company (“Owner”), and FSP Property
Management LLC, a Massachusetts limited liability company (“Asset
Manager”).
The
parties hereto agree as follows:
1. Engagement of Asset
Manager
Owner
hereby engages Asset Manager to manage the Assets (hereinafter defined) as
directed by Owner and in accordance with this Agreement, and to provide the
services set forth herein. Asset Manager hereby accepts such
engagement and agrees to perform its obligations hereunder, all as more fully
set forth herein. As used herein, the term “Assets” shall mean the
real property and improvements located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx, and the personal and intangible property owned by Owner in connection
therewith, including without limitation, all leases and contracts entered into
or assumed by Owner in connection therewith, and all cash received and accounts
receivable of Owner in connection therewith.
2. Powers and Duties of Asset
Manager
2.1 Asset
Manager shall have the exclusive authority, subject in each case to the terms
and limitations of the Contract, to exercise the following powers on behalf of
Owner:
(a) to
manage the real and personal property of the Assets, including the supervision
of property managers;
(b) to
create reserve funds for working capital, contingent liabilities, taxes, debt
service, repairs, replacements, renewals, capital expenditures, capital
improvements, other Asset expenses, or other purposes consistent with the
operation and maintenance of the Assets, and reduce or increase the amount
thereof; and
(c) to
assure that Owner’s interest in the Assets is duly insured against loss or
damage by fire with extended coverage and against such other insurable hazards
and risks, including general public liability, as is customary and appropriate
in the circumstances.
2.2 In
exercising the powers set forth in Section 2.1, Asset Manager may conduct
business with consultants, accountants, mortgage originators, correspondents,
lenders, borrowers, servicers, technical advisers, engineers, attorneys,
brokers, underwriters, corporate fiduciaries, escrow agents, appraisers,
depositories, custodians, agents for collection, insurers, insurance agents,
banks, lessees of the Assets, builders, developers, property managers, leasing
agents, and persons acting in any other capacity deemed by Asset Manager to be
necessary or desirable in furtherance of Owner’s business with respect to the
Assets.
2.3 Asset
Manager shall maintain proper records and books of account reflecting all
transactions and other matters relative to the management of the Assets, and
shall make such books and records available for inspection and copying by Owner
during normal business hours. Asset Manager shall not destroy or
otherwise dispose of such books and records for a period of six (6) years from
the date of the transaction to which they relate.
2.4 Asset
Manager shall implement the objectives of Owner as communicated in writing by
Owner to Asset Manager from time to time. Asset Manager shall at
Owner’s request develop a business plan for the Assets, which shall include
review of the leases, the local real estate market, the quality of and the
potential for increasing revenue, estimated future expenses, and a plan for
positioning the Assets for marketing and sale.
2.5 To
perform its duties under this Agreement, Asset Manager at all times shall
utilize a staff of adequately trained personnel, the cost of which is to be
borne by Asset Manager. It is understood and agreed that the
officers, directors and employees of Asset Manager may serve as officers,
directors and employees of affiliates of Asset Manager.
2.6 Asset
Manager shall perform, or engage such persons or entities (including any persons
or entities who are affiliates of Asset Manager) as it deems appropriate to
perform custodial functions for recording income and expenses of the Assets,
payment of expenses, fees, and taxes, and safekeeping of cash and short-term
securities of the Assets and maintaining records and documents evidencing title,
title insurance, contracts evidencing terms of sale, leases and operative
documents.
(a) Asset
Manager shall provide such other advice and services and perform or supervise
such functions as may be pertinent to and consistent with the objectives of
Owner, as reasonably requested by Owner from time to time.
3. Reports
3.1 Within
a reasonable time after the end of each fiscal year (which shall be the calendar
year) Asset Manager shall deliver to Owner a report containing (i) a balance
sheet for the Assets as of the end of such fiscal year, and statements of profit
and loss and changes in financial position of the Assets for such fiscal year,
(ii) a statement of net cash flow for such fiscal year, (iii) a statement of all
fees paid to Asset Manager by Owner for such fiscal year, and (iv) a summary of
the activities performed by Asset Manager on behalf of the Account during such
fiscal year. If requested by Owner, all or any of the reports
required by 3.1 (i), (ii), (iii), and (iv) shall be audited by an independent
certified public accounting firm selected by Owner.
3.2 Within
a reasonable time after the end of each fiscal quarter, Asset Manager shall
deliver to Owner a report containing (i) a balance sheet for the Assets as of
the end of such quarter, (ii) statements of profits and losses and net cash flow
of for the Assets for such quarter, (iii) a statement of all fees paid to Asset
Manager by Owner for such quarter, and (iv) a summary of the activities
performed by Asset Manager on behalf of the Account during such
quarter.
-2-
4. Conflicts.
Owner
agrees that except as expressly provided herein Asset Manager and affiliates of
Asset Manager may engage in other activities and other businesses, including but
not limited to the rendering of advice and services and the making and
management of investments on their own behalf and on behalf of others, and the
pursuit of such activities and businesses shall not be deemed wrongful or
improper.
5. Extent of Asset Manager’s
Liability.
5.1 Neither
Asset Manager nor any director, officer or employee of Asset Manager shall be
liable to Owner for any loss, liability, damage or injury arising out of or in
connection with the performance by Asset Manager of its obligations under this
Agreement (including any action taken or omitted in accordance with the powers
and limitations set forth in Section 2 hereof); except that Asset Manager shall
be liable to Owner for any losses resulting from gross negligence, willful
malfeasance or a fraudulent action or omission on the part of Asset Manager or
any director, officer or employee of Asset Manager.
5.2 Asset
Manager shall not be liable for any action or inaction of any consultant,
engineer, investment advisory service, attorney, property manager, appraiser,
accountant, bookkeeper or other agent, except that Asset Manager shall be liable
if Asset Manager acted in bad faith, was grossly negligent or acted with willful
misconduct, in the selection or retention of such person.
5.3 Owner
shall indemnify and hold harmless Asset Manager from and against any loss
suffered or sustained by it by reason of any act, omission, or alleged
connection with any of the Assets, including, without limitation, any judgment,
settlement, reasonable attorney’s fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action or proceeding;
except that Asset Manager shall not be indemnified for any loss or expense (a)
arising from its gross negligence, willful malfeasance or a fraudulent action or
omission on the part of Asset Manager, or (b) arising from a willful breach or
failure by Asset Manager to perform a responsibility or obligation under this
Agreement.
6. Fees
6.1 Owner
shall pay Asset Manager a fee (the “Asset Management Fee”) equal to one percent
(1.0%) of the Gross Revenue of the Assets. “Gross Revenue” means all
(a) rent, additional rent and other charges and revenues collected under the
leases or otherwise in connection with the Assets, (b) amounts collected from
all licensees, concessionaires, and similar users of any portion of the Assets
(including all amounts collected from vending machines and coin-operated
telephones), and (c) proceeds of rental value insurance or business interruption
insurance to the extent paid to Owner in lieu of any amounts provided for in
clauses (a)-(b) above. Gross Revenue will not include any (i) charges
to tenants for above-standard tenant work, (ii) tenant security deposits (except
to the extent applied toward the payment of rent, additional rent or other
charges due under any leases), (iii) interest on any funds received in
connection with the operation of the Assets, (iv) insurance
-3-
proceeds
(except as provided for in clause (c) above) or condemnation awards, (v) amounts
received on account of any abatement, reduction or refund of property taxes,
(vi) discounts or dividends on insurance policies, (vii) sums collected through
litigation (other than for nonpayment of rent, additional rent or other charges
due under any leases), (viii) proceeds from the sale or refinancing of the
Assets or any portion thereof or interest therein, or (ix) capital contributions
to Owner by, or loans to Owner by, partners of Owner whether or not held by
Asset Manager, or tenants prior to the date hereof (clauses (i)-(ix),
collectively, "Excluded Proceeds"). The proceeds from any buy-out of
all or a portion of the remaining term of a lease, or from any damage claims
against a tenant for lost rent shall be amortized over the remaining term of
such lease and included in the "Gross Revenue" of Owner in equal monthly
installments until the earlier of (i) re-occupancy of the subject tenant space
or (ii) expiration of the term of the subject lease.
6.2 Intentionally
deleted.
6.3 Owner
will pay the Asset Management Fee to Asset Manager on or before the fifth (5th)
business day of each calendar month, for its services in managing the Assets for
the immediately preceding calendar month. If this Agreement commences
on a date other than the first day of a calendar month or if the term expires or
is terminated on a day other than the last day of a calendar month, then the
Asset Management Fee will be prorated for such partial month on the basis of a
thirty (30) day month.
7. Costs and Expenses to be
Borne by Asset Manager
Asset
Manager shall pay, without reimbursement from Owner, the following costs and
expenses incurred by it in rendering the services provided for
herein:
(a) expenses
relating to Asset Manager’s status and qualification as a
corporation;
(b) employment
expenses, including but not limited to salaries, wages, payroll taxes, cost of
employee benefit plans and temporary help expenses, of (i) the clerical staff
and bookkeeping and other personnel required to provide effective performance of
Asset Manager’s duties under this Agreement; and (ii) the officers, directors
and employees of Asset Manager;
(c) travel
expenses and incidental out-of-pocket expenses incurred by Asset Manager’s
officers and employees in connection with the performance of Asset Manager’s
duties under this Agreement;
(d) costs
of internal preparation and mailing of reports and tax forms to contractholders
and to governmental authorities;
(e) rent,
utilities, other office expenses and overhead of Asset Manager; and
(f) fees
and other remuneration paid to any independent consultants hired by Asset
Manager for the purpose of performing services required to be performed by Asset
Manager in consideration of the Asset Management Fee.
-4-
8. Expenses of
Owner
Except as
otherwise expressly provided in Section 7 hereof, Owner assumes and shall pay or
cause to be paid all expenses of the Assets, including, by way of illustration
and without limitation thereof:
(a) audit,
accounting and tax return preparation fees of independent certified public
accountants for special and annual audits;
(b) real
and personal property taxes and assessments, securities issuance and transfer
taxes and other taxes, fees and assessments payable with respect to the Assets
to Federal, state and other governmental agencies;
(c) interest,
fees, charges and all other costs payable on borrowings, if any, related to the
Assets;
(d) fees
and expenses paid to independent contractors, attorneys, engineers and special
consultants, property managers, insurance brokers and other agents engaged by
Asset Manager in connection with the acquisition or sale of property for, or in
connection with the business, of the Assets;
(e) all
costs and expenses in connection with the acquisition, disposition, operation,
improvement, maintenance, repair, leasing and ownership of the Assets, including
any legal and closing costs in connection therewith;
(f) insurance
as is reasonably required, convenient or beneficial, in connection with the
business of the Asset;
(g) costs
and expenses of independent appraisers;
(h) legal
expenses of Owner and other expenses for professional services for
Owner;
(i) expenses
connected directly with the acquisition, valuation, ownership or disposition or
investments in real property or other investment assets and payable to third
parties, including, but not limited to the cost of foreclosure, legal fees,
engineering inspections, insurance reviews, insurance premiums and other
expenses of professional services, mortgage, appraisal and inspection fees,
title and abstract expenses, maintenance, repair and improvement of property,
and brokerage and sale commissions;
(j) expenses
relating to Asset Manager’s status and qualification as a corporation;
and
-5-
(k) any
other expenses incurred in the business of Owner in connection with the Asset,
whether like or unlike the foregoing, other than those expenses specifically set
forth in Section 7.
9. Termination
9.1 Term. This
Agreement shall continue in effect from month to month until disposition of the
Asset by Owner, unless sooner terminated by Owner, pursuant to
Section 9.2. Such termination shall be without penalty or any
other payment, or Section 9.3.
9.2 Termination by Either Party
Without Cause. Either party hereto may terminate this
Agreement without cause at any time, upon at least thirty (30) days written
notice, effective at the end of the notice period.
9.3 Termination for Cause by
Owner. At the opinion solely of Owner, this Agreement shall
terminate immediately upon written notice thereof given by Owner to Asset
Manager if any of the following events shall happen:
(a) If
Asset Manager shall violate any provision of this Agreement and, after notice of
such violation, shall not cure such default within 30 days;
(b) If
(i) Asset Manager shall be adjudged a bankrupt or insolvent by a court of
competent jurisdiction, or (ii) an order shall be made by a court of competent
jurisdiction (A) for the appointment of a receiver, liquidator or trustee of
Asset Manager or of all or substantially all of its property by reason of the
foregoing, or (B) approving any petition filed against Asset Manager for its
reorganization, and such adjudication or order shall remain in force or unstayed
for a period of 30 days; or
(c) If
Asset Manager shall (i) institute proceedings for voluntary bankruptcy, (ii)
file a petition seeking reorganization under the federal bankruptcy laws, or for
relief under any law for the relief of debtors, (iii) consent to the appointment
of a receiver of itself or of all or substantially all of its property, (iv)
make a general assignment for the benefit of its creditors, or (v) admit in
writing its inability to pay its debts generally as they become
due.
Asset Manager agrees that if any of the
events specified in Subsections 9.3(b) or 9.3(c) of this Section shall happen,
it will give written notice thereof to Owner within seven days after the
happening of such event.
In the event of a termination by Owner
pursuant to Subsections 9.3(a), 9.3(b) or 9.3(c), Asset Manager shall be liable
to Owner for damages at law and at equity, subject to terms and provisions of
this Agreement, including, without limitation, Article 5 hereof.
-6-
9.4 Termination for Cause by
Asset Manager.
In the
event it is alleged or charged that any building on the premises or any
equipment therein or any act or failure to act by the Owner with respect to the
premises or the sale, rental, or other disposition thereof fails to comply with,
or is in violation of, any of the requirements of any constitutional provision,
statute, ordinance, law, or regulation of any governmental body or any order or
ruling of any public authority or official thereof having or claiming to have
jurisdiction thereover, and the Asset Manager, in its sole and absolute
discretion, considers that the action or position of the Owner with respect
thereto may result in damage or liability to the Asset Manager, the Asset
Manager shall have the right to cancel this Agreement at any time by written
notice to the Owner of its election so to do, which cancellation shall be
effective upon the service of such notice. Such cancellation shall
not release the indemnities of the Owner set forth in Section 5 above, and shall
not terminate any liability or obligation of the Owner to the Asset Manager for
any payment, reimbursement, or other sum of money then due the payable to the
Asset Manager hereunder.
9.5 From
and after the effective date of termination of this Agreement, Asset Manager
shall not be entitled to remuneration for further services
hereunder. Asset Manager shall forthwith upon such
termination:
(a) Pay
over to Owner all money collected and held for the account of the Assets
pursuant to this Agreement, after deducting any reimbursement for its expenses
to which it is then entitled hereunder;
(b) Deliver
to Owner a full accounting, including a statement showing all payments collected
by it and all money held by it, covering the period following the date of the
last accounting furnished to the Account; and
(c) Deliver
to Owner all property and documents related to the Assets then in the custody of
Asset Manager.
10. Assignment
Asset
Manager may not assign this Agreement without the prior written consent of
Owner, which consent may be given or withheld in the sole discretion of
Owner. This Agreement shall automatically terminate, without the
payment of any penalty, in the event of its assignment without the consent of
Owner. The parties acknowledge that this Agreement constitutes a
personal services contract of the type contemplated by Section 365(c)(1) of the
Federal Bankruptcy Act and, as such, may not be assumed or assigned by a trustee
in bankruptcy.
11. Governing
Law
This
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
-7-
12. Insurance and Waiver of
Subrogation
12.1 Each
of Asset Manager and Owner agree that with respect to insurance which either of
them may from time to time carry and which relates to liability for matters
relating to the Assets or to this Agreement, each shall, if possible and
economically practical, cause the other to be named as an additional insured
under all such policies. With respect to any policies in which either
is not named as an additional insured, each hereby waives any and all claims and
rights to recovery against the other or against the officers, employees, agents
and representatives of the other on account of loss or damage occasioned to such
waiving party or its property or the property of others under its control to the
extent that such loss or damage is insured under any insurance policies which
either may have in force at the time of such loss or damage. If
required by an insurer, each party shall, upon obtaining policies of insurance
of the type enumerated above, give notice to the insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Agreement
and each shall cause such insurance policy to provide that the insurance company
waives all rights of recovery by way of subrogation against another party hereto
in connection with any liability covered by such policy.
13. No Oral Modifications;
Waiver
This
Agreement constitutes the entire Agreement between the parties hereto and may
not be modified or amended unless such modification or amendment has been
approved in writing by Asset Manager and by Owner. No provisions or
conditions of this Agreement may be waived other than by a writing signed by the
party waiving such provision or condition.
14. Notice
All
notices, approvals, consents, elections or other communications under this
Agreement must be in writing and may be (a) delivered personally, (b) delivered
by a nationally recognized overnight courier, (c) mailed by registered or
certified mail, postage prepaid, with return receipt requested, or (d) sent by
telecopier (with written confirmation of the receipt of the telecopy) with the
original to follow in the manner specified in clauses (a)-(c) above, and
addressed to the party at its address set forth below:
if to
Owner, to:
FSP 000
Xxxx Xxxxxx Xxxxx LLC
x/x
Xxxxxxxx Xxxxxx Properties Corp.
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xx. Xxxxxx X. Xxxxxx
Fax No.:
(000) 000-0000
-8-
with a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxxxxx, Esq.
Fax No.:
(000) 000-0000
if to
Asset Manager, to:
FSP
Property Management LLC
x/x
Xxxxxxxx Xxxxxx Properties Corp.
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xx. Xxxxx X. Xxxxxxxxxx
Fax No.:
(000) 000-0000
with a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxxxxx, Esq.
Fax No.:
(000) 000-0000
or at
such other address, as from time to time, supplied by a party to the others by
like notice. Notices will be deemed to be received, if personally
delivered, upon delivery, if sent by overnight courier, on the first (1st)
business day after being sent, if sent by mail, on the date set forth on the
return receipt, if sent by telecopier, on the date sent if confirmation of
receipt shows delivery on or before 5:00 P.M., or on the next business day if
confirmation of receipt shows delivery after 5:00 P.M. Each party
shall be entitled to rely on all communications which purport to be on behalf of
the other party and purport to be signed by an authorized
party.
-9-
15. Severability
If any
term, covenant, condition or provision of this Agreement shall be invalid or
unenforceable to any extent, the remaining terms, covenants, conditions and
provisions of this Agreement or the application thereof to any circumstances or
to any party other than those as to which any term, covenant, condition or
provision is held invalid or unenforceable, shall not be affected thereby and
each remaining term, covenant, condition and provision of this Agreement shall
be valid and shall be enforceable to the fullest extent permitted by
law.
16. Article
Headings
Article
headings are inserted only for the purpose of convenient reference and in no way
define, limit or prescribe the scope or intent of this Agreement or any part
thereof and shall not be considered in interpreting or construing this
Agreement.
17. Successors and
Assigns
Subject
to Article 9 of this Agreement, this Agreement shall be binding upon and inure
to the benefit of Asset Manager and Owner and their respective successors and
permitted assigns.
18. Number and
Gender
All
provisions and any variation thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the person or persons
may require.
(Remainder
of Page Intentionally Left Blank)
-10-
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by Owner and
Asset Manager as of the date first set forth above.
OWNER:
FSP 000
XXXX XXXXXX XXXXX LLC
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx
President
ASSET
MANAGER:
FSP
PROPERTY MANAGEMENT LLC
By: /s/ Xxxxx X.
Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
President
-11-
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO ASSET MANAGEMENT AGREEMENT (this “First Amendment”) is
made and entered into on August 23, 2007 with an effective date of January 5,
2007 (the “Effective
Date”), by and between FSP 000 XXXX XXXXXX XXXXX LLC, a Delaware limited
liability company (“Owner”) and FSP
PROPERTY MANAGEMENT LLC, a Massachusetts limited liability company (“Asset
Manager”).
R
E C I T A L S
WHEREAS,
Owner and Asset Manager entered into that certain Asset Management Agreement,
dated as of January 5, 2007 (the “Original Agreement”),
with respect to the engagement by Owner of Asset Manager to manage the real
property and improvements located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx,
and the personal and intangible property owned by Owner in connection therewith,
including without limitation, all leases and contracts entered into or assumed
by Owner in connection therewith, and all cash received and accounts receivable
of Owner in connection therewith; and
WHEREAS,
Owner and Asset Manager desire to amend the Original Agreement as set forth
below to correct a typographical error.
NOW,
THEREFORE, in consideration of the mutual agreements herein set forth and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Owner and Asset Manager have agreed, and do hereby agree, as
follows:
1. Definitions. All
terms used herein and not specifically defined shall have the same meaning
herein as is ascribed to them in the Original Agreement.
2. Amendment. Section
6.1 of the Original Agreement is hereby amended by deleting the reference to
“one percent (1.0%)” and replacing it with “one half of one percent
(.005%)”.
3. Reimbursement. Asset
Manager hereby agrees to promptly reimburse Owner for any excess Asset
Management Fees paid by Owner to Asset Manager.
4. Effective
Date. This First Amendment shall be effective retroactively to
the Effective Date.
5. Ratification. Except
as amended by this First Amendment, Owner and Asset Manager hereby ratify and
confirm all of the terms and conditions of the Original Agreement.
|
END OF TEXT; SIGNATURE PAGE
FOLLOWS
|
IN WITNESS WHEREOF, this First
Amendment has been executed and delivered by Owner and Asset Manager on August
23, 2007 with an effective date of January 5, 2007.
OWNER: FSP
000 XXXX XXXXXX XXXXX LLC
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx
President
ASSET
MANAGER: FSP
PROPERTY MANAGEMENT LLC
By: /s/ Xxxxx X.
Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
President
