Exhibit 10.5
ASSET MANAGEMENT AGREEMENT
This Asset Management Agreement ("Agreement") dated as of October
14, 2004, by and between FSP Galleria North Limited Partnership, a Texas limited
partnership ("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 know as Galleria North Tower 1 located at 00000 Xxxx Xxxx,
Xxxxxx, Xxxxx, 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.
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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 by means of a
reimbursement from Xxxxx Interests Limited Partnership' Management Fee through a
letter agreement dated October 14, 2004 attached hereto as Exhibit A "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 proceeds
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(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
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(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.
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;
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(j) expenses relating to Asset Manager's status and qualification as
a corporation; and
(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.
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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
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This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
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 Galleria North Limited Partnership
x/x Xxxxxxxx Xxxxxx Properties Corp.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
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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.
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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)
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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 GALLERIA NORTH LIMITED PARTNERSHIP,
a Texas limited partnership
By: FSP Galleria North LLC, its general partner
By: /s/ Xxxxxxx Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxx Xxxxxxxx
Chief Operating Officer
ASSET MANAGER:
FSP PROPERTY MANAGEMENT LLC
By: /s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
President
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