MASTER MANAGEMENT AGREEMENT
EXHIBIT 10.2
THIS MASTER MANAGEMENT AGREEMENT
(this "Agreement") is made
and entered into as of June 11, 2008, by and among REIT MANAGEMENT AND RESEARCH
LLC, a Delaware limited liability company ("Managing Agent"), and
SENIOR HOUSING PROPERTIES
TRUST, a Maryland real estate investment trust, on behalf of itself and
those of its subsidiaries as may from time to time own properties subject to
this Agreement (each, an "Owner" and,
"collectively, "Owners").
W I T N E S S E T H:
WHEREAS,
Owners are
today acquiring various medical office buildings, clinics and biomedical,
pharmaceutical and laboratory properties and will, in the future, acquire
additional such properties (collectively, the "Managed Premises");
and
WHEREAS, Owners wish to engage
Managing Agent to manage the Managed Premises;
NOW, THEREFORE, in consideration of
the premises and
the agreements herein contained, Owners and Managing Agent hereby agree as
follows:
1. Engagement. Subject
to the terms and conditions hereinafter set forth, Owners hereby employ Managing
Agent with respect to the Managed Premises. Managing Agent hereby
accepts such employment as managing agent and agrees to devote such time,
attention and effort as may be appropriate to operate and manage the Managed Premises in
a diligent, orderly and efficient manner, Managing Agent may, with Owners’
consent, subcontract out some or all of its obligations hereunder to third party
managers; provided, however, that, in any
such event, Managing Agent shall be and remain primarily liable to Owners for
performance hereunder.
Notwithstanding
anything to the contrary set forth in this Agreement, the services to be
provided by Manager hereunder shall exclude all services (including, without
limitation, any garage management or cafeteria management services) whose
performance by an advisor to any Owner could give rise to an Owner’s receipt of
"impermissible tenant service income" as defined in §856(d)(7) of the Internal
Revenue Code (as amended or superseded hereafter) or could in any other way
jeopardize an Owner’s federal
or state tax classification as a real estate investment
trust. Manager shall not perform any such service and if, in any
event, Manager shall inadvertently perform any
-1-
such service, no
compensation therefor shall be paid or payable hereunder.
2. General
Parameters. Any or all services may
be performed or goods purchased by Managing Agent under arrangements jointly
with or for other properties owned or managed by Managing Agent and the costs
shall be reasonably apportioned. Managing Agent may employ personnel
who are assigned to work exclusively at the Managed Premises or partly at the
Managed Premises and other buildings owned and/or
managed by Managing Agent. Wages, benefits and other related costs of
centralized accounting personnel and employees employed by Managing Agent and
assigned to work exclusively or partly at the Managed Premises shall be fairly
apportioned and reimbursed, pro rata, by Owners in addition to the Fee and
Construction Supervision Fee (as defined in Section
5).
(a) To seek tenants for the Managed
Premises in accordance with the rental schedule established by the applicable
Owner and to negotiate leases including renewals thereof and to lease in the
applicable Owners name space on a lease form approved by such Owner, only to
tenants, at rentals, and for periods of occupancy all as are approved in each
case by the applicable Owner. To employ appropriate means in order that the
availability of rental space is made known to potential tenants; provided, however, that such
means shall not include the employment of brokers unless otherwise agreed by the
applicable Owner. The legal expenses of negotiating such leases and leasing such
space shall be approved and paid by the applicable Owner.
(b) To collect all rents and other
income from the Managed Premises and to give receipts therefor, both on behalf
of Owners, and deposit such funds in such banks and such accounts as are named,
from time to time, by Owners, in agency accounts for and under the name of
Owners. Managing Agent shall be empowered to sign disbursement checks
on these accounts,
(c) To make contracts for and to
supervise any repairs and/or alterations to the Managed Premises, including
tenant improvements and decoration of rental space, as may be approved by the
applicable Owner.
-2-
(d) For Owners’ account and at its
expense, to hire, supervise and discharge employees as required for the
efficient operation and maintenance of the Managed Premises.
(e) To obtain, at Owners’ expense,
appropriate insurance for the Managed Premises protecting Owners and Managing
Agent while acting on behalf of Owners against all normally insurable risks
relating to the Managed Premises and complying with the requirements of Owners’
mortgagee, if any, and, upon approval thereof, to cause the same to be provided
and maintained by all tenants with respect to the Managed Premises to the extent required by
the terms of such tenants’ leases.
(f) To promptly notify the
applicable Owner and its insurance carriers, as required by the applicable
policies, of any casualty or injury to person or property at the Managed
Premises, and complete customary reports in connection therewith.
(g) To procure seasonably all
supplies and other materials necessary for the proper operation of the Managed
Premises, at Owners’ expense.
(h) To pay promptly from rental
receipts, other income derived from the Managed Premises, or other monies made
available by Owners for such purpose, all costs incurred in the operation of the
Managed Premises which are expenses of Owners hereunder, including wages or
other payments for services rendered, invoices for supplies or other items
furnished in relation to the Managed Premises, and pay over forthwith the
balance of such rental receipts, income and monies to Owners or as Owners shall
from time to time direct (in the event that the sum of the expenses to operate
and the compensation due the Managing Agent exceed gross receipts in any month
and no excess funds from prior months are available for payment of such excess,
Owners shall pay promptly the amount of the deficiency thereof to Managing Agent
upon receipt of statements therefor.)
(i) To advise Owners promptly of any
material developments in the operation of the Managed Premises that might affect
the profitable operation of the Managed Premises.
-3-
(j) To establish, in Owners’ name
and with Owners’ approval, reasonable rules and regulations for tenants of the
Managed Premises.
(k) At the direction of the
applicable Owner and with counsel selected by such Owner, to institute or defend, as the case may
be, any and all legal actions or proceedings (in the name of such
Owner if necessary) relating to operation of the Managed Premises.
(l) To maintain the books and
records of Owners reflecting the management and operation of the Managed
Premises, making available for reasonable inspection and examination by Owners
or its representatives, all books, records and other financial data relating to
the Managed Premises.
(m) To prepare and deliver
seasonably to tenants of the Managed Premises such statements of expenses or
other information as shall be required on the landlord’s part to be
delivered to such tenants for computation of rent, additional rent, or any other
reason.
(n) To aid, assist and cooperate
with Owners in matters relating to taxes and assessments and insurance loss
adjustments, notify the Owners of any tax increase or special assessments
relating to the Managed Premises and, with Owners’ approval, to enter into
contracts for tax abatements services.
(o) To provide such emergency
services as may be required for the efficient management and operation of the
Managed Premises on a 24-hour basis.
(p) To enter into contracts for
utilities (including, without limitation, water, fuel, electricity and
telephone) and for building services (including, without limitation, cleaning of
windows, common areas and tenant space, ash, rubbish and garbage hauling, snow
plowing, landscaping, carpet cleaning and vermin extermination), and for other
services as are appropriate to first class office space.
(q) To seek the lowest competitive
price commensurate with desired quality for all items purchased or services
contracted by it under this Agreement.
-4-
(r) To take such action generally
consistent with the provisions of this Agreement, as Owners might with respect
to the Managed Premises if personally present.
4. Authority. Owners
give to Managing Agent the authority and powers to perform the foregoing duties
on behalf of Owners subject, however, to Owners’ approval as
specified. Owners further authorize Managing Agent to incur such
reasonable expenses, specifically contemplated in Section 2, on behalf
of Owners as are necessary in the performance of those duties.
5. Special
Authority of Agent. In addition to, and not
in limitation of, the duties and authority of Managing Agent contained herein,
Managing Agent shall perform the following duties, but only with Owners’ prior
approval in each case:
(a) Terminate tenancies and sign and
serve in the name of Owners such notices therefor as may be required for the
proper management of the Managed Premises.
(b) With counsel selected by Owners,
and at Owners’ expense, institute and prosecute actions to evict tenants and
recover possession of rental space, and recover rents and other sums due; and
when expedient, settle, compromise and release such actions or suits or
reinstate such tenancies.
6. Compensation.
(a) In consideration of the services
to be rendered by the Managing Agent hereunder, Owners agree to pay and the
Managing Agent agrees to accept as its sole compensation (i) a management fee
(the "Fee")
equal to three percent (3%) of the gross collected rents actually received by
Owners from the Managed Premises, such gross rents to include all fixed rents,
percentage rents, additional rents, operating expense and tax escalations, and
any other charges paid to Owners in connection with occupancy of the Managed
Premises, but excluding any amounts collected from tenants to reimburse Owners
for the cost of capital improvements or for expenses incurred in curing any
tenant default or in enforcing any remedy against any tenant; and (ii) a
construction supervision fee (the "Construction Fee") in
connection with all interior and exterior construction renovation or repair
activities at the Managed Premises, including, without limitation, all tenant
and capital improvements in, on or about the Managed Premises, undertaken during
the term of this Agreement,
-5-
other than
ordinary maintenance and repair, equal to five percent (5%) of the cost of such
construction which shall include the costs of all related professional services
and the cost of general conditions.
(b) The Fee shall be due and payable
monthly, in arrears based on a reasonable annual estimate or budget with an
annual reconciliation within
thirty (30) days after the end of each calendar year. The
Construction Fee shall be due and payable periodically, as agreed by Managing
Agent and Owners, based on actual costs incurred to date.
(c) Notwithstanding anything herein
to the contrary, Owners shall reimburse Managing Agent for reasonable travel
expenses incurred when traveling to and from the Managed Premises while
performing its duties in accordance with this Agreement; provided, however, that,
reasonable travel expenses shall not include expenses incurred for travel to and
from the Managed Premises by personnel assigned to work exclusively at the
Premises.
(d) Managing Agent shall also
receive the amount of any lump sum reimbursables paid by tenants of the Managed
Premises to the extent amounts paid exceed costs incurred by Owners for work
performed with respect thereto.
(e) Managing Agent shall be entitled
to no other additional compensation, whether in the form of commission, bonus or
the like for its services under this Agreement. Except as otherwise
specifically provided herein with respect to payment by Owners of legal fees,
accounting fees, salaries, wages, fees and charges of parties hired by the
Managing Agent on behalf of Owners to perform operating and maintenance
functions in the Managed Premises, and the like, if Managing Agent hires third
parties to perform services required to be performed hereunder by Managing Agent
without additional charge to Owners, Managing Agent shall (except to the extent
the same are reasonably attributable to an emergency at the Managed Premises) be
responsible for the charges of such third parties. Managing
Agent shall not,
however, hire any third party without Owners’ prior written consent, which
consent shall not be unreasonably withheld.
7. Contracts. Managing Agent shall
not, without the prior consent of Owners, enter into any contracts on behalf of
Owners which extend beyond the then current term of this Agreement.
-6-
8. Term of
Agreement. The term of this Agreement shall
begin on the date hereof and, unless sooner terminated as herein provided, shall
end on that date which is thirty (30) days following written notice of
termination given by either Owners or Managing Agent to the
other. This Agreement may be terminated with respect to less than all
of the properties comprising the Managed Premises.
9. Termination
or Expiration. Upon termination or
expiration of this Agreement with respect to any of the Managed Premises for any
reason whatsoever, Managing Agent shall promptly turn over to Owners all books,
papers, funds, records, keys and other items relating to the management and
operation of such Managed Premises, including, without limitation, all leases in
the possession of the Managing Agent and shall render to Owners a final accounting with respect
thereto through the date of termination.
10. Assignment
of Rights and Obligations.
(a) Without Owners’ prior written
consent, Managing Agent shall not sell, transfer, assign or otherwise dispose of
or mortgage, hypothecate or otherwise encumber or permit or suffer any
encumbrance of all or any part of its rights and obligations hereunder, and any
transfer, encumbrance or other disposition of an interest herein made or
attempted in violation of this paragraph shall be void and ineffective; and
shall not be binding upon Owners.
(b) Owners, without Managing Agent’s
consent, may assign its rights and obligations hereunder to any mortgagee with
respect to, or successor Owners of, the Managed Premises, but not
otherwise.
(c) Consistent with the foregoing
paragraphs (a) and (b), the terms "Owners" and "Managing Agent" as used in this
Agreement shall mean the original parties hereto and their respective
mortgagees, successors, assigns, heirs and legal representatives.
11. Fidelity Bond. Owners, at Owners’
expense, may require that employees of Managing Agent who handle or are
responsible for Owners’ money to be bonded by a fidelity bond in an amount
sufficient in Owners’ determination to cover any loss which may occur in the
management and operation of the Managed Premises or that Managing Agent obtain a
fiduciary policy of insurance.
-7-
12. Indemnification
and Insurance.
(a) Owners agree to defend,
indemnify and hold
harmless Managing Agent from and against all casts, claims, expenses and
liabilities (including reasonable attorneys’ fees) arising out of Managing
Agent’s performance of its duties in accordance with this Agreement including,
without limitation, injury or damage to persons or property occurring in, on or
about the Managed Premises and violations or alleged violations of any law,
ordinance, regulation or order of any governmental authority regarding the
Managed Premises except any injury, damage or violation resulting from Managing
Agent’s default hereunder, or from Managing Agent’s fraud, gross negligence or
willful misconduct in the performance of its duties hereunder.
(b) Owners agree that required
insurance shall include, at Owners’ expense, public liability and workmen’s
compensation insurance upon the following terms and conditions:
(i) policies
shall be so written as to protect the Managing Agent in the manner and to the
same extent as Owners.
(ii) Workmen’s
compensation policies shall be written to comply with applicable legal
requirements.
(iii) The
public liability insurance shall be written in limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and Five Hundred
Thousand Dollars ($500,000) per occurrence for property damage.
(iv) Such
public liability insurance shall include the standard extensions of liability
coverage as may be mutually agreed upon from time to time, and shall name both
parties and their respective employees as additional insureds.
13. Notices. Whenever
notice is to be sent pursuant to this Agreement to either party to this
Agreement, it is expressly understood that same shall be sent postage prepaid,
certified mail, return receipt requested to either party at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to any such address that either party
may hereinafter designate.
-8-
14. Limitation
of Liability.
(a) Neither Owners nor Managing
Agent shall be personally liable hereunder, all such liability being limited in
the case of Owners to the interest of Owners in the Managed Premises and in the
case of Managing Agent, to its interest hereunder.
(b) The Declarations of Trust
establishing some Owners, a copy of which, together with all amendments thereto
(the "Declarations"), is
duly filed with the Department of Assessments and Taxation of the State of
Maryland, provides that the names of such Owners refers to the trustees under
such Declarations collectively as trustees, but not individually or personally,
and that no trustee, officer, shareholder, employee or agent of such Owners
shall be held to any personal liability, jointly or severally, for any
obligation of, or claim against, such Owners. All persons dealing
with such Owners, in any way, shall look only to the respective assets of such
Owners for the payment of any sum or the performance of any obligation of such
Owners. In any event, all liability of such Owners hereunder is
limited to the interest of such Owners in the Managed Premises and, in the case of Managing
Agent, to its interest hereunder.
(c) It is the intention of the
parties hereto that each Owner be liable hereunder only with respect to the
Managed Premises owned by such Owner and that each Owner be solely responsible
for liabilities incurred with respect only to its properties and receive all
income therefrom.
15. Modification
of Agreement. This Agreement may not be modified, altered or
amended in manner except by an amendment
in writing, duly executed by the parties hereto.
16. Independent
Contractor. This Agreement is not one of general agency by
Managing Agent for Owners, but one with Managing Agent engaged as an independent
contractor. Nothing in this Agreement is intended to create a joint
venture, partnership, tenancy-in-common or other similar relationship between
Owners and Managing Agent for any purposes whatsoever.
17. Law Governing. This Agreement shall be
governed by and in accordance with the laws of The Commonwealth of
Massachusetts.
-9-
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as a sealed instrument as of the
date above first written.
MANAGING
AGENT:
REIT MANAGEMENT &
RESEARCH LLC
By: /s/ Xxxx X.
Xxxxxx
Xxxx X. Xxxxxx,
Executive Vice President
OWNERS:
SENIOR HOUSING
PROPERTIES TRUST, on its
own behalf and on
behalf of its subsidiaries
By: /s/ Xxxxx X.
Xxxxxxx
Xxxxx X. Xxxxxxx,
President
-10-
