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EXHIBIT (10)(v)
ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT is executed as of March 27, 2000, 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") with principal executive offices at 551 Fifth
Avenue, Suite 1416, New York, New York 10176.
W I T N E S S E T H:
WHEREAS, the Board of Trustees of the Trust (the "Board") has
determined that the best interests of the Trust's beneficiaries would be served
by a reorganization of the Trust's management structure pursuant to which the
management of the assets and supervision of the operations of the properties of
the Trust and of its affiliates would be undertaken by an independent entity
reporting to the Board;
WHEREAS, the principal officers of the Manager previously held senior
executive positions with the Trust and have a substantial familiarity with the
assets of the Trust and of its affiliates, which assets consist of fee,
leasehold and mortgage interests in office and residential buildings, shopping
centers, and parking facilities (the "Properties" - such term to include
properties owned or controlled, directly or indirectly, by affiliates of the
Trust on the date hereof and by any future affiliates, including, without
limitation, any liquidating trust to be created by the Trust, formed by and
owned or controlled, directly or indirectly, by the Trust to own, operate
and/or dispose of properties owned by the Trust or its affiliates);
WHEREAS, the Trust desires to retain the Manager to operate and
administer the Properties and to provide corporate management services, and the
Manager is willing to be so retained and to perform such services during the
term hereof and any extension thereof on behalf of the Trust and its
affiliates;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
ENGAGEMENT OF THE MANAGER
1.1 APPOINTMENT. The Trust hereby retains the Manager, and the
Manager hereby agrees to so serve, on the terms and conditions herein set
forth, to provide asset and corporate management services with respect to the
Trust and its affiliates and the Properties, in accordance with the terms of
this Agreement.
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1.2 SERVICES OF THE MANAGER.
(a) Subject to the other terms and provisions of this
Agreement, the Manager shall be responsible for conducting and overseeing the
business and financial affairs of the Trust and its affiliates pertaining to
the ownership, management, operation, administration, promotion, maintenance,
improvement and leasing of the Properties, and administration of its corporate
functions including, but not limited to, the following:
(i) Engaging a property manager to carry out the
day-to-day operation and management of each of the Properties, and overseeing
and reviewing the performance by the property manager of the property manager's
duties, including its collection and proper deposits of rental payments;
(ii) Formulating and overseeing the implementation
of strategies for the management, operation, administration, promotion,
maintenance, improvement, financing and refinancing, leasing, and disposition
of the Properties;
(iii) Reviewing on a periodic basis the property
manager's performance of maintenance and repairs, and arranging for supervision
of tenant improvement work and capital improvement projects to be performed on
behalf of the Trust and its affiliates, at the Properties;
(iv) Disbursing all sums payable by the Trust and
its affiliates, including operating expenses, (including, but not limited to,
Manager's compensation hereunder, other than compensation to be received in
accordance with Section 2.2(b) hereof or Section 3(b) hereof) and capital
expenditures;
(v) Supervising the maintenance of the Trust's
and its affiliates' office records, books and accounts in accordance with the
governing documents of the Trust and its affiliates, as now or hereafter
amended (collectively, the "Trust Documents"), and in conformity with the
accounting principles utilized by the Trust and its affiliates, and causing to
be prepared and filed on behalf of the Trust and its affiliates, all reports,
returns and statements required to be prepared or filed by the Trust and its
affiliates;
(vi) Retaining on behalf of the Trust and its
affiliates, and at the Trust's and its affiliates' sole cost, an independent
certified public accountant to audit the financial statements for each fiscal
year of the Trust and its affiliates and to prepare quarterly and other
periodic reports reflecting, for such period, the financial status and
activities of the Trust and its affiliates and the Properties;
(vii) As and when necessary or appropriate in the
Manager's determination, engaging, at the Trust's and its affiliates' sole
cost, consultants, appraisers, legal counsel and other professionals, in
accordance with Article IV hereof;
(viii) Reviewing and evaluating bids to purchase
from the Trust and its affiliates, any of the Properties or other assets and
facilitating the consummation of the disposition of any Properties or other
assets of the Trust and its affiliates;
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(ix) Attending regular and special meetings of the
Trustees and, as and when requested, committee meetings of the Board of
Trustees;
(x) In general, providing to the Trust and its
affiliates the services currently performed by the senior officers of the Trust
other than the chief financial officer and, after March 31, 2001, the chief
financial officer, subject to the supervision of the Board, such services to
include:
(A) recommending the timing and amount
of distributions to beneficiaries;
(B) recommending corporate finance
decisions;
(C) overseeing filings with the
Securities and Exchange Commission; and
(D) management of investor relations;
and
(xi) Taking such other actions as may be necessary
or appropriate to assist the Trust and its affiliates, in conducting its
business, including, but not limited to, causing the execution and delivery of
all agreements in the ordinary course of business of the Trust and its
affiliates, necessary in connection with the performance of the above_described
duties and within the scope of the authority granted to the Manager hereunder.
1.3 PERFORMANCE.
(a) The Manager shall perform its duties in a prudent and
businesslike manner, and shall use commercially reasonable efforts to maximize
the yield from the management, operation, maintenance, leasing, development and
financing and, where appropriate, liquidation of the assets of the Trust and
its affiliates. The Manager shall seek to realize the goals of the Trust and
its affiliates, set forth in the Trust Documents or adopted by the Board of
Trustees and shall conduct its activities hereunder (including the commencement
and settlement of legal proceedings) in accordance with the Trust Documents and
the directives of the Board of Trustees.
(b) Nothing herein shall constitute a representation,
warranty or covenant by the Manager concerning the future performance of the
Trust or its affiliates, as a whole or of any Property held by the Trust or its
affiliates. Without limitation of the foregoing, the Manager has not made any
representations concerning the fair market value of the Properties or any of
the Trust's or its affiliates' other assets, the amounts which may be realized
upon the disposition thereof, the revenues that may be received or costs
(including finance costs) that may be incurred in connection with the
operation, maintenance, improvement or disposition thereof.
1.4 ROLE OF THE TRUST. The Board reserves the right to approve in
advance, or delegate authority for such advance approval, to the Executive
Committee or other committee or representative of the Board, any major
investment, operating and financing decisions with respect
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to the Trust or its affiliates, the Properties and other assets now owned or
hereafter acquired by the Trust or its affiliates, including, but not limited
to, decisions to:
(a) sell, lease, assign, convey, mortgage, pledge or
otherwise transfer or encumber any of the Properties or any interest of the
Trust or its affiliates, other than the sale or disposition of miscellaneous
assets not exceeding $50,000 for any transaction or series of related
transactions and not required for the operations of the Trust or its affiliates
or the Properties (such as obsolete computers or other equipment); provided,
that the Manager shall not require advance approval for the execution of a
tenant's lease for fewer than 20,000 square feet of rentable space of a
Property;
(b) borrow money or establish credit facilities on behalf
of the Trust or its affiliates (except for unsecured trade debt incurred in the
ordinary course of business), or prepay the principal balance of any mortgage
loan except out of the proceeds of the disposition or refinancing of assets
securing such mortgage loan;
(c) commence legal actions on behalf of the Trust or its
affiliates, except for actions to collect rent and evict tenants in default
under their leases;
(d) merge the Trust or any of its affiliates with another
entity, tender for Trust shares or shares or any of its affiliates, redeem
shares or pay off liabilities of the Trust or its affiliates;
(e) confess a judgment, admit a liability or accept a
settlement, compromise or payment of any claim, except for settlements of
immaterial disputes (including lease terminations and bankruptcy settlements)
with tenants;
(f) write off assets;
(g) make distributions to beneficiaries; and
(h) purchase any assets or make any investments.
ARTICLE II
COMPENSATION
2.1 ANNUAL FEE. As compensation for its services hereunder, the
Manager shall receive a fee equal to One Million Five Hundred Thousand and
00/100 Dollars ($1,500,000.00) per year (the "Annual Fee"). The Annual Fee
shall be payable monthly in advance, in installments of One Hundred Twenty-five
Thousand and 00/100 Dollars ($125,000.00), on the first business day of each
month. If the Effective Date occurs on a date other than the first business
day of a month, then the first payment of such fee shall take place one
business day after the Effective Date and such fee shall be pro rated for such
month. If this Agreement is terminated in accordance with Article III hereof
on a date other than the last business day of the month, then such fee shall be
pro rated for such month.
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2.2 INCENTIVE FEE.
(a) As further compensation for its services hereunder,
the Manager shall be paid a fee (the "Incentive Fee"), at the times and
pursuant to the procedures set forth below, equal to ten percent (10%) of (A)
the Excess Per Share Distribution, multiplied by (B) the number of Shares of
the Trust in respect of which an Excess Per Share Distribution is made.
(b) Definitions as used herein:
(i) "Excess Per Share Distribution" means the
aggregate of all Distributions in respect of a single common share of
beneficial interest of the Trust which exceeds $4.60 per share.
(ii) "Distributions" means distributions first
made after March 1, 2000, other than the Impark Spinoff, (but not share
repurchases) in respect of common shares of beneficial interest of the Trust,
including distributions of cash, debt obligations and the fair market value of
other property whether or not in connection with the Trust's liquidation, and
the fair market value of any consideration received in exchange for common
shares of beneficial interest by reason of a merger or consolidation with a
third party entity or other similar transaction. In the event of a merger,
consolidation or other similar business combination transaction, the Manager
will receive a credit toward the Distribution amount equal to the fair market
value of the consideration received by holders of common shares of beneficial
interest of the Trust received in exchange for their common shares of
beneficial interest of the Trust, including, but not limited to, the fair
market value ascribed in the transaction to stock, preferred stock, debt
instruments, cash, warrants, options, etc., received by the holders of common
shares of beneficial interest of the Trust. For purposes hereof, "fair market
value" in connection with a merger, consolidation or other similar business
combination transaction shall be equal to the product of (A) the average of the
closing prices of the common shares of beneficial interest of the Trust on the
ten (10) consecutive trading days ending on the trading date immediately
preceding the effective date of such transaction and (B) the total number of
common shares of the Trust outstanding on the last such trading day. Except as
otherwise provided herein, "fair market value" shall be determined by the Board
of Trustees of the Trust in good faith; provided, however, that if the Manager
disagrees in good faith with such determination, then the Manager shall be
entitled to seek arbitration in accordance with Section 13.2 herein with
respect to this issue. For purposes hereof, the "Impark Spinoff" means any
distribution to holders of common shares of beneficial interest of the Trust of
all or substantially all of the interests of the Trust in Imperial Parking
Corporation in accordance with Imperial Parking Corporation's Form 10, as
amended, filed with the Securities and Exchange Commission on March 2, 2000, as
the same may be amended from time to time.
(c) Time of Payment The entire amount of the Incentive
Fee, to the extent then earned, shall be paid to the Manager from time to time,
as, when and if Distributions are made to shareholders of the Trust. The
Incentive Fee shall be deemed earned when the aggregate Distributions per share
first exceed the sum of $4.60. The amount of each payment of the Incentive Fee
shall equal the entire Incentive Fee computed pursuant to Section 2.2(a), less
the amount thereof which has theretofore been paid to the Manager.
(d) Survival of Incentive Fee Obligations Unless the
Trust terminates this Agreement in accordance with Article III(a)(ii) or
III(a)(v) hereof, the obligations of the Trust to pay
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the Incentive Fee shall survive the termination of this Agreement, and shall
continue until the earlier of: (i) the Trust having been fully liquidated, (ii)
the consummation of a merger, consolidation or other similar business
combination transaction involving the Trust and (iii) June 30, 2003; provided,
that, notwithstanding clause (iii) of this Section 2.2(d), the Incentive Fee,
if any, may be paid after June 30, 2003 if and to the extent it is payable with
respect to Distributions made after such date that are directly attributable to
net proceeds received by the Trust from any sale or refinancing transaction
with respect to real property assets owned by the Trust as of the date hereof,
which transaction is consummated (x) on or before June 30, 2003 or (y) within
six (6) months after June 30, 2003 and a definitive agreement with respect to
such transaction is executed on or before June 30, 2003. If the Trust
terminates this Agreement in accordance with Article III (a)(ii) or (III)(a)(v)
hereof, then the obligations of the Trust to pay the Incentive Fee shall
automatically terminate.
2.3 COSTS, EXPENSES AND DISBURSEMENTS.
(a) In addition to the payments described in Sections 2.1
and 2.2 above, the Manager shall be reimbursed for (or, upon Manager's request,
the Trust shall pay directly) all out-of-pocket costs and expenses incurred by
the Manager in connection with the performance of its duties hereunder,
including, without limitation, (i) all amounts paid for travel to and from the
Properties, (ii) all fees and costs paid in connection with the business and
operations of the Trust to Third Party Advisors (as defined in Section 4.1(a))
not directly paid for by the Trust; and (iii) the salary of the Trust's Chief
Financial Officer for such time and at such amounts as mutually agreed upon by
the Trust's Board and the Manager, but in no event shall the Trust pay such
salary past March 31, 2001.
(b) All payments to be made by the Trust for
reimbursement of the Manager pursuant to the provisions hereof shall be made
within ten (10) days of the Trust's receipt of appropriate written evidence
thereof. All direct payments by the Trust pursuant to the provisions hereof
shall be made promptly as requested by the Manager, but also subject to prior
receipt of appropriate written evidence thereof.
(c) Notwithstanding the foregoing, the Manager shall, on
and after the Effective Date, credit the Trust, against the Annual Fee, with
the first $35,000 of the salary of the person serving as Chief Financial
Officer of the Trust, such credit to be effected in equal monthly amounts of
$1,458.33 for each month of the Initial Term of this Agreement.
ARTICLE III
TERM
(a) The term of this Agreement shall commence as of the
Effective Date and shall terminate on the earlier of:
(i) the second anniversary of the Effective Date
(the "Initial Term");
(ii) at the election of the Trust, a termination
effected in accordance with Article VIII hereof;
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(iii) at the election of the Trust, any time
following the execution of an agreement relating to a merger, consolidation or
other similar business combination transaction; provided, that, the Trust
provides 30 days notice of such event to the Manager;
(iv) at the election of the Trust, any time after
the Board of Trustees determines in good faith that the remaining equity of the
Trust, including the preferred shares of the Trust, has a fair market value of
less than $20,000,000; provided, that, the Trust provides 30 days notice of
such event to the Manager; and
(v) at the election of the Trust, any time prior
to June 1, 2000, it being understood that, notwithstanding anything in this
Agreement to the contrary, the Trust may terminate this Agreement prior to the
Effective Date in accordance with this clause.
Notwithstanding the foregoing, the Initial Term may be extended by the
Trust for one (1) additional twelve-month period (the "Extended Term"),
provided that the Trust shall deliver written notice of such extension not
later than six (6) months prior to the end of the Initial Term.
(b) If the Trust terminates this Agreement after the
Effective Date and prior to the end of the Initial Term, or, having extended
this Agreement, prior to the end of the Extended Term, other than, in either
case, by reason of a termination in accordance with Article III (a)(ii) or
III(a)(v) hereof, the Trust shall be required to pay to the Manager fifty
percent of the entire amount of the unpaid Annual Fees which would have been
earned by the Manager through the balance of the Initial Term or the Extended
Term, as the case may be, had the Agreement not been so terminated; except that
in no event will such payment be more than $750,000.00 or less than
$500,000.00. In addition, upon the termination of this Agreement and
regardless of whether such termination has occurred by reasons of the
expiration of the Initial Term or the Extended Term or pursuant to Article
VIII, the Trust shall pay to the Manager all accrued and unpaid Annual Fees,
all unreimbursed costs and expenses incurred by the Manager for which
reimbursement is required pursuant to Section 2.3.
(c) Effective Date The Effective Date of this Agreement
is the date on which the employment of each of Anne Nelson Zahner, David
Schonberger and Daniel P. Friedman has terminated pursuant to their Employment
Agreements as each had been amended as of the date hereof.
ARTICLE IV
RETENTION OF CONSULTANTS: ADDITIONAL SERVICES
4.1 RETENTION OF THIRD PARTY ADVISORS.
(a) The Manager shall, subject to the reimbursement and
direct payment requirements under Section 2.3, retain such third party
consultants and professional advisors, as the Manager shall reasonably deem
necessary for the operation and management of the Trust's and its affiliates'
assets and otherwise required or necessary in order to enable the Manager to
perform the management services undertaken by the Manager hereunder. Such
third party consultants and professional advisors shall include property
managers, attorneys, accountants, financing placement agents, insurance
consultants, leasing agents, appraisers, construction managers, environmental
engineers, asbestos abatement advisors, computer hardware and software and
management
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information system consultants for the Trust's and its affiliates' operations,
and brokers (collectively, "Third Party Advisors").
(b) The retention by the Manager of legal counsel and
independent certified public accountants shall be subject to the approval of
the Trust, which approval the Trust agrees it will not unreasonably withhold,
condition or delay.
(c) The retention of general real estate consultants
(e.g., appraisers, environmental engineers, asbestos abatement advisers,
brokers, property managers, insurance agents, etc.) shall not require the
approval of the Trust, provided such retentions are at market rates, and shall
otherwise comply with all applicable provisions of the Trust Documents.
(d) The Manager agrees that during the term hereof, it
will cause each of its members to continue to hold the officer positions
currently held by them with the Trust, subject to the right of the Board to
remove any or all of them at any time. The continued holding of such positions
shall be for administrative and ministerial purposes only, and shall not
require any of such persons to perform substantive tasks, it being understood
that the performance by such persons of services related to the Trust or the
Properties shall be carried out by such persons as members and employees of the
Manager, except to the extent such officers are requested to review and execute
(i) reports, registration statements and other filings required to be filed
with state, federal and other governmental authorities, including the
Securities and Exchange Commission, and (ii) officers' certificates. The
termination by the Trust of any of such person's position as an officer of the
Trust or the voluntary termination by any such person of his or her position as
an officer if such person is immediately replaced by a person reasonably
acceptable to the Board of Trustees shall not constitute a default by the
Manager under this Agreement.
ARTICLE V
ACCOUNTING SYSTEM
5.1 The Manager shall cause to be maintained by a Third
Party Advisor an adequate and separate accounting system in connection with
its management of the Trust and its affiliates, in accordance with sound
business practices. The books and records shall be kept in a manner consistent
with the Trust Documents and in conformity with the accounting principles
utilized by the Trust and its affiliates and shall be maintained at all times
at the principal place of business of the Manager. The Trust and its
affiliates, through their duly authorized agents, shall have the right and
privilege, during normal business hours, of examining, inspecting and copying
such books and records. The principal place of business of the Manager shall be
maintained at the address set forth for notices to the Manager in Article 11
below or such other address as the Manager shall notify the Trust of in
writing.
ARTICLE VI
RELATIONSHIP AND AUTHORITY
The Trust and the Manager shall not, by virtue of this Agreement or
the performance thereof by either party, constitute a partnership, joint
venture or joint enterprise in the performance of the Manager's duties
hereunder. The Manager may, at its election, so inform third parties with whom
it deals on behalf of the Trust and may take other steps to carry out the
intent of this Article 6.
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ARTICLE VII
POWER OF ATTORNEY
The Trust hereby irrevocably appoints the Manager, and any officer or
agent of the Manager, with full power of substitution, its true and lawful
attorney-in-fact with full, irrevocable power and authority in the Trust's
place and stead and in the Trust's name and on the Trust's behalf or in
Manager's own name, from time to time and at any time until the termination of
this Agreement pursuant to Article III or Article VIII hereof, to do any and
all things in the Manager's reasonable discretion required or desirable to be
done to carry out the terms or to accomplish the purposes of this Agreement,
consistent with and subject to the scope of the authority granted to the
Manager under the terms of this Agreement. Nothing contained in this Article
VII shall be construed to expand the scope of authority granted to the Manager
under this Agreement. The Trust hereby ratifies all actions taken by or on
behalf of the Trust pursuant to this power of attorney or otherwise as provided
in this Agreement. This power of attorney is coupled with an interest and
shall be irrevocable until this Agreement is terminated. The powers conferred
on the Manager hereunder are solely to protect its interest and shall not
impose any duty upon it to exercise any of such powers.
ARTICLE VIII
EVENTS OF DEFAULT: TERMINATION
8.1
(a) Defaults. Each of the following events shall
constitute an "Event of Default" by the Manager under this Agreement:
(i) The failure by the Manager to perform any
material duty or obligation imposed upon it under this Agreement or any other
material breach of this Agreement by the Manager; provided, however, that no
such failure or breach shall be deemed to constitute an Event of Default unless
such failure or breach continues for a period of thirty (30) days after the
Manager's receipt of written notice from the Trust of such failure or breach
or, if such failure or breach is not capable of being cured within said thirty
(30)-day period, the Manager shall have failed diligently and in good faith to
commence to cure the same within said thirty (30)-day period and to have
diligently continued to prosecute the same;
(ii) The Manager's liquidation, bankruptcy or
insolvency, including:
(A) the filing of a voluntary petition
seeking liquidation, reorganization, arrangement or readjustment, in any form,
of its debts under Title 11 of the United States Code or any other federal or
state insolvency law, or its filing an answer consenting to or acquiescing in
any such petition; or
(B) the expiration of ninety (90) days after
the filing of an involuntary petition under the Title 11 of the United States
Code, or any involuntary petition seeking liquidation, reorganization,
rearrangement or readjustment of its debts under the federal or state
insolvency law, provided that the same shall not have been vacated, set aside
or stayed within such 90-day period; or
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(iii) The commitment by the Manager of any act of fraud,
willful misconduct or gross negligence in connection with the performance of
its duties hereunder.
(b) Termination Upon Default. The occurrence of an Event of
Default shall entitle the Trust to terminate this Agreement upon two (2) days
prior written notice to the Manager, without any further obligation or
liability to the Manager other than the Trust's liability for any compensation
or right to reimbursement accrued or otherwise payable under Article II hereof
through the date of termination only and any liability under Article IX below.
ARTICLE IX
INDEMNIFICATION
(a) The Trust shall indemnify the Manager and any present or
former officer, member, director, employee or agent of the Manager or the
personal representatives thereof ("Manager Affiliates"), made or threatened to
be made a party in any civil or criminal action or proceeding by any person
(including by the beneficiaries of the Trust whether any such proceeding is
brought directly or derivatively), arising out of or in connection with the
execution and performance of this Agreement by the Manager and/or any Manager
Affiliate, (including, but not limited to liabilities to persons relating to
the use, occupancy, visitation, catastrophe or other event pertaining to the
Properties) against judgments, fines, amounts paid in settlement and reasonable
expenses, including, without limitation, court costs, attorneys' fees and
disbursements and those of accountants and other experts and consultants
incurred as a result of such action or proceeding or any appeal therein, all of
which expenses as incurred shall be advanced by the Trust pending the final
disposition of such action or proceeding, it being understood that such
advances shall be returned by the Manager and/or Manager Affiliate to the Trust
in the event that the Manager and/or Manager Affiliate, as the case may be, is
finally determined not to be entitled to indemnification under the last
sentence of this subsection. The Trust shall also provide such indemnification
to any Manager Affiliate and the heirs, successors or assigns of such Manager
Affiliate and his or her representatives brought by reason of, arising out of
in connection with, or by virtue of the fact that such Manager Affiliate is or
was a Trustee or officer of the Trust, (including indemnification in respect of
any excise tax assessed on such a person in connection with service to an
employee benefit plan), or served any other trust, partnership, corporation,
limited liability company, joint venture, trust, employee benefit plan, or
other entity or enterprise in any capacity at the request of the Trust or at
the request of the Manager in connection with the services provided by the
Manager hereunder. Such required indemnification shall be subject only to the
exception that no indemnification may be made to or on behalf of the Manager or
a Manager Affiliate in the event and to the extent that a judgment or other
final adjudication adverse to the Manager or a Manager Affiliate establishes
that his or its acts were committed in bad faith or were the result of active
and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or it personally gained in fact a financial profit or
other advantage to which he or it was not legally entitled (provided, however,
that indemnification shall be made upon any successful appeal of any such
adverse judgment or final adjudication).
(b) If any proceeding is commenced in which any relief is
sought against both the Trust and the Manager and/or a Manager Affiliate and
the Manager or a Manager Affiliate seeks indemnification pursuant to this
Article IX, and the Manager or a Manager Affiliate reasonably determines that a
conflict exists between the Trust and the Manager or a Manager Affiliate,
separate counsel may be selected by the Manager to defend the Manager or a
Manager Affiliate, and the fees, costs and disbursements of such separate
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counsel shall be advanced by the Trust, subject, however, to reimbursement in
the event that the Manager and/or Manager Affiliate, as the case may be, is
finally determined not to be entitled to indemnification under the last
sentence of subsection (a) above.
(c) In no event shall any party to any such proceeding be
entitled to effect a settlement thereof without the written consent of all
other parties to such proceeding unless such settlement:
(i) results in a dismissal with prejudice as to
all of the claims in such proceeding with respect to a non-consenting party,
and
(ii) does not require the non-consenting party to
take any affirmative action (other than ministerial steps in connection with
such settlement) and does not require the payment of any money by the
non-consenting party.
(d) The foregoing right of indemnification shall not be
deemed exclusive of any and other rights to which the Manager or any Manager
Affiliate, or their successors, assigns or the heirs or representatives, may be
entitled apart from this Article IX under law or the Trust Documents, including
such rights of indemnification as shall otherwise be available to the Manager
or any Manager Affiliate by virtue of the fact that he or she previously served
as an officer, Trustee, employee or agent of the Trust.
(e) Neither the Manager nor any of the Manager Affiliates
shall be liable to the Trust or any of the beneficiaries of the Trust for any
acts or omissions or for any error of judgment or mistake of fact or law,
except for willful misconduct or gross negligence, but in no event shall the
liability of the Manager or Manager Affiliate exceed the personal liability
which would be imposed upon an officer of a corporation organized under the
laws of the State of Delaware.
ARTICLE X
WAIVER AND INVALIDITY
10.1 WAIVER. The failure of either party to insist upon a strict
performance of any of the terms or provisions of this Agreement or to exercise
any option, right or remedy herein contained, shall not be construed as a
waiver or as a relinquishment for the future of such term, provision, option.
right or remedy, but the same shall continue and remain in full force and
effect. No waiver by either party of any term or provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party.
10.2 PARTIAL INVALIDITY. In case any one or more of the provisions
contained in this Agreement should be determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect against a
party hereto, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby and such invalidity, illegality or unenforceability shall only apply as
to such party in the specific jurisdiction where such judgment shall be made.
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ARTICLE XI
ASSIGNMENT
Neither party shall assign or transfer or permit the assignment or
transfer this Agreement without the prior written consent of the other party.
ARTICLE XII
NOTICES
All notices provided for in this Agreement shall be in writing and
shall be delivered personally or by postage-prepaid registered or certified
mail, at the following address of each party:
TO THE TRUST:
First Union Real Estate Equity and Mortgage Investments
c/o Gotham Partners LLC
110 East 42nd Street, 18th Floor
New York, New York
Attention: William Ackman
Copies of all notices to the Trust to be sent to:
Fried, Frank, Harris, Schriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Attention: Steven G. Scheinfeld, Esq.
TO THE MANAGER:
Radiant Partners, LLC
551 Fifth Avenue, Suite 1416
New York, New York 10176
Attention: Daniel Friedman
COPIES OF ALL NOTICES TO THE MANAGER TO BE SENT TO:
Herrick, Feinstein LLP
2 Park Avenue, 21st Floor
New York, New York 10011
Attention: Harvey S. Feuerstein, Esq.
AND TO
Goldberg, Weprin & Ustin
1501 Broadway, 22nd Floor
New York, New York 10036
Attention: Andrew Albstein, Esq.
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Notice shall be deemed given upon receipt thereof. Any party hereto
may change the address herein specified for notice purposes by ten (10) days'
prior written notice to the other party. With the exception of default notices
or a notice of the exercise of any right by a party to another party, copies of
notices to attorneys are an accommodation only and are not necessary for the
validity of a notice.
ARTICLE XIII
APPLICABLE LAW; ARBITRATION
13.1 GOVERNING LAW. This Agreement is made and entered into in the
State of New York, and its interpretation, validity and performance shall be
governed by the laws of the State of New York, without regard to conflict of
laws principles.
13.2 ARBITRATION. Any dispute or controversy between the Manager
or any of its employees or the Manager Affiliates, and the Trust or any of its
affiliates arising in connection with this Agreement, any amendment thereof, or
the breach thereof shall be determined and settled by arbitration in New York,
New York, by a panel of three arbitrators in accordance with the rules of the
American Arbitration Association. Any award rendered therein shall be final and
binding upon the Trust, its affiliates and the Manager and any of its employees
or the Manager Affiliates and their respective legal representatives and
judgment may be entered in any court having jurisdiction thereof. The expenses
of such arbitration shall be paid by the party against whom the award shall be
entered, unless otherwise directed by the arbitrators.
ARTICLE XIV
MODIFICATION: COUNTERPARTS
Any change or modification of this Agreement must be in writing signed
by both parties hereto. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original.
ARTICLE XV
MISCELLANEOUS
15.1 HEADINGS. Heading of Articles and Sections are inserted only
for convenience and are in no way to be construed as a limitation of the scope
of the particular Articles or Sections to which they refer.
15.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement with respect to the subject matter hereof between the parties and
supersedes all prior understandings and writings, and may be changed only by a
writing signed by the parties hereto.
15.3 CONSENTS. All consents to be given by the Trust or its
partners must be in writing.
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15.4 NO PERSONAL LIABILITY. Notwithstanding anything contained
herein to the contrary, this Agreement is made and executed on behalf of the
Trust, a business trust organized under the laws of the State of Ohio, by its
officer(s) on behalf of the Trustees thereof, and none of the Trustees or any
additional or successor Trustee hereafter appointed, or any beneficiary,
officer, employee or agent of the Trust shall, except as otherwise may be
required by law, have any liability in such Trustee's, beneficiary's,
officer's, employee's or agent's personal or individual capacity, but instead,
all parties shall look solely to the property and assets of the Trust for
satisfaction of claims of any nature arising under or in connection with this
Agreement.
15.5 Covenants.
(a) The Manager shall use reasonable efforts to ensure
that all persons having dealings with the Trust through Manager shall be
informed that no trustee, shareholder, officer or agent of the Trust shall be
held to any personal liability, nor shall their private property be used for
the satisfaction of any obligation or claim or otherwise in connection with the
affairs of the Trust, but the trust estate only shall be liable. The Manager
recognizes and agrees that every agreement or other written instrument entered
into by the Manager on behalf of the Trust shall contain a provision stating
the above limitation.
(b) Notwithstanding any provision in this Agreement to
the contrary, the Manager shall not knowingly take any action (including,
without limitation, the furnishing or rendering of services to tenants of
property or managing any real property) and shall use its reasonable efforts to
avoid taking any action which would (1) adversely affect the status of the
Trust as a real estate investment trust ("REIT"), as defined in the Internal
Revenue Code of 1986, as amended or (2) materially violate any law, rule,
regulation, or statement of policy of any governmental body or agency having
jurisdiction over the Trust or over the Properties, or (3) otherwise not be
permitted by Trust Documents.
(c) In the event that the terms of this Agreement at any
time shall, in the opinion of counsel for the Trust, threaten to impair the
status of the Trust as a REIT, then the Trust shall propose such amendments to
or substitute arrangements for this Agreement, with prospective or retroactive
effect, as may in its opinion be necessary to protect and preserve the status
of the Trust as a REIT, provided the material economic terms hereof are not
altered.
(d) If the Manager shall at any time become aware of
facts or circumstances which might threaten to impair the status of the Trust
as a REIT, then the Manager shall immediately make such facts and circumstances
known to the Chairman of the Board of the Trust.
(e) The Manager agrees and understands that in the
Manager's position with the Company, the Manager will be exposed to and receive
information relating to the confidential affairs of the Trust and its
affiliates, including, but not limited to, financial information, account data,
technical information, business and marketing plans, strategies, customer
information, other information concerning the Trust's products, promotions,
development, financing, expansion plans, business policies and practices, and
other forms of information considered by the Trust to be confidential and in
the nature of trade secrets. The Manager agrees that during the term of this
Agreement and thereafter, the Manager will keep such information confidential
and not disclose such information, either directly or indirectly, to any third
person or entity without the prior written consent of the Trust. This
confidentiality covenant has no temporal, geographical or territorial
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restriction. Upon termination of this Agreement, the Manager will promptly
supply to the Trust all property, keys, notes, memoranda, writings, lists,
files, reports, tenant lists, correspondence, tapes, disks, cards, surveys,
maps, logs, machines, technical data or any other tangible product or document
which has been produced by, received by or otherwise submitted to the Manager
during or prior to the term of this Agreement.
(f) The Manager shall at all times be controlled and
majority-owned by two of the following individuals: Daniel Friedman, David
Schonberger and Anne Nelson Zahner. Such individuals shall be the employees of
the Manager who shall be primarily responsible for fulfilling the obligations
of the Manager hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
RADIANT PARTNERS, LLC
By: /s/ Daniel Friedman
-------------------------------
Daniel Friedman, Managing Member
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By: /s/ William Ackman
-------------------------------
Name: William Ackman
Title: Chairman
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