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Exhibit (10)(kk)
MODIFICATION TO ASSET MANAGEMENT AGREEMENT
THIS MODIFICATION TO ASSET MANAGEMENT AGREEMENT (the "Modification") is entered
into as of the 7th day of March, 2001 by and between RADIANT PARTNERS, LLC, a
New York limited liability company (the "Manager") and FIRST UNION REAL ESTATE
EQUITY AND MORTGAGE INVESTMENTS, an Ohio business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, Manager and the Trust entered into that certain Asset
Management Agreement dated March 27, 2000, that certain Amendment to Asset
Management Agreement dated May 31, 2000, that certain Letter Agreement dated May
31, 2000 and that certain Second Amendment to Asset Management Agreement dated
June 16, 2000 (collectively, the "Agreement") wherein the Trust retained the
services of Manager to operate and administer the assets of the Trust and its
affiliates; and
WHEREAS, the Agreement is still in full force and effect; and
WHEREAS, the Trust and Manager wish to modify the terms of the
Agreement as more fully set forth herein.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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1. The definition of Properties in the Agreement is hereby revised to reflect
only those assets listed on Schedule A attached hereto and made a part
hereof.
2. Article I, Section 1.1 of the Agreement is hereby revised to reflect that
Manager shall provide asset management services of the Properties listed in
Schedule A hereto and shall not provide any management services with
respect to the Trust and its affiliates other than for the Properties.
3. Article I, Section 1.2(a)(v), (vi), (viii) and (x) of the Agreement are
hereby deleted in their entirety.
4. Article I, Section 1.2(a)(vii) of the Agreement is hereby modified to add
the phrase "at the Trust's direction" to the end of this section.
5. Article I, Section 1.2(a)(ix) of the Agreement is hereby modified to add
the phrase "At the Trust's request" to the beginning of the section.
6. Article I, Section 1.2(xi) of the Agreement is hereby modified to apply
only to the Properties listed on Schedule A attached hereto and made a part
hereof.
7. Article 1, Section 1.3(a) of the Agreement is hereby modified to apply only
to the Properties listed on Schedule A attached hereto and made a part
hereof.
8. Article II, Section 2.1 is hereby modified to reflect that the Annual Fee
from the Modification Effective Date (as hereinafter defined) shall be
$250,000.00, payable monthly in advance, in installments of Twenty Thousand
Eight Hundred Thirty Three Dollars and 33/100s ($20,833.33).
9. Article II, Section 2.2 of the Agreement is hereby deleted in its entirety
from the Agreement.
10. Article II, Section 2.3(a)(iii) of the Agreement is hereby deleted in its
entirety.
11. Article II, Section 2.3(c) of the Agreement is hereby deleted in its
entirety.
12. Article III, Section (a)(iii), (a)(iv) and (a)(v) of the Agreement are
hereby deleted in their entirety.
13. Article III, Section (a) of the Agreement is also modified to include the
following:
The term of the Agreement from the Modification Effective Date (as
hereinafter defined) shall terminate on the earlier of:
(i) the second anniversary of the Modification Effective Date (the
"Initial Term"); or
(ii) at the election of the Trust, a termination effected in accordance
with Article VIII hereof.
14. Article III, Section (b) is hereby revised to add the following:
"From and after the Modification Effective Date, if the Trust
terminates the Agreement after such Modification Effective Date and
prior to the end of the Initial Term, the Trust shall be required to
pay to Manager 100% of the entire amount of unpaid Annual Fees which
would have been paid to Manager through the balance of the Initial
Term.
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15. Article III, is hereby modified to add a new Section (d) as follows:
(d) Modification Effective Date The Effective Date of this
Modification is the date on which the Manager closes on the
purchase of certain assets from the Trust pursuant to a Contract
of Sale dated September 15, 2000.
16. Article IV, Section 4.1(a) of the Agreement is hereby revised to provide
that Manager shall only retain such third party consultants and
professional advisors, as the Manager shall reasonably deem necessary for
the operation and management of the Properties set forth in Schedule A
attached hereto and made a part hereof, and for no other purpose.
17. Article IV, Section 4.1(b) of the Agreement is hereby deleted in its
entirety.
18. Article IV, Section 4.1(c) of the Agreement is hereby deleted and replaced
with the following:
(c) The retention of general real estate consultants (e.g. appraisers,
environmental engineers, asbestos abatement advisers, brokers,
property managers, insurance agents, etc.) shall require the
approval of the Trust.
19. Article IV, Section 4.1(d) of the Agreement is hereby deleted in its
entirety.
20. Article V of the Agreement is hereby deleted in its entirety.
21. The Trust hereby conveys to the Manager all of the Trust's right, title and
interest in and to the furniture, fixtures and computer and office
equipment in the offices located at 000 Xxxxx Xxxxxx, Xxxxx 0000 free and
clear of any and all liens whatsoever. The Trust hereby agrees to execute
any documents necessary to memorialize said conveyance, upon request from
Manager.
22. The obligation of the Trust to enter into this Modification is contingent
upon the Trust, at its sole cost and expense, obtaining the approval for
this Modification from shareholders of the Trust holding the requisite
number of shares in accordance with the organizational and governing
documents of the Trust. The Trust hereby acknowledges that the Board of the
Trust will recommend approval of the Modification to the shareholders and
will use its best efforts to obtain such approval.
23. Except as set forth hereinabove modified, all of the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and in
full force and effect and shall inure to the benefit of the parties hereto,
their respective legal representative, successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Modification
as of the date first written above.
RADIANT PARTNERS, LLC
By://s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
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SCHEDULE A
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ASSETS OF FIRST UNION TO BE MANAGED BY RADIANT PARTNERS, LLC:
1. Park Plaza Mall
2. Circle Tower
3. Property Accounts Receivables and Rent Settlements
