Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties. (b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation: (i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2. (ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors; (iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments; (iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments; (v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors; (vi) purchasing and financing investments on behalf of the Company; (vii) providing the Company with portfolio management; (viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments); (ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company; (x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions; (xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements; (xii) counseling the Company in connection with policy decisions to be made by the Board of Directors; (xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines; (xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder; (xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption; (xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager; (xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results; (xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities; (xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto; (xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses; (xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act; (xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs; (xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations; (xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company; (xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time; (xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and (xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws. (c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. (d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement. (e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 5 contracts
Samples: Management Agreement (American Capital Strategies LTD), Management Agreement (American Capital Agency Corp), Management Agreement (American Capital Agency Corp)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein. During the term of this Agreement, provided that funds are made available by the Company for such purposes Manager shall provide, or cause another Person or Persons to provide, the services as set forth in Section 7 hereof. The appointment this Agreement to the Company, provided that, in the event the Manager causes another Person or Persons to provide any of the services required to be provided by the Manager hereunder, the Manager shall be exclusive remain responsible for the provision of such services pursuant to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xii) performing investigating, analyzing and supervising proposing possible acquisition and investment opportunities;
(iii) evaluating and recommending to the performance Board of administrative functions necessary in the management Directors and officers of the Company as may be agreed upon by the Manager hedging strategies and the Board of Directors, including, without limitation, the services engaging in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment hedging activities on behalf of the Company’s debts and obligations and maintenance of appropriate information technology services , consistent with such strategies, as so modified from time to perform such administrative functionstime;
(xiiv) negotiating agreements on the Company’s behalf;
(v) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiivi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvivii) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiviii) monitoring the operating performance of the Company’s investments Company and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiiix) investing and re-investing any monies and securities at the direction of audit committee of the Company (including in short-term investmentsBoard of Directors, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixiv) advising the Company with respect to obtaining financing for its operations;
(xv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances;
(xvi) obtain and maintain, for and on behalf of the Company, insurance coverages with respect to the Company and its business and operations, including errors and omissions insurance with respect to the services provided by the Manager pursuant to this Agreement, in each case in the types and minimum limits as the Manager determines to be appropriate and as is consistent with standard industry practice; and
(xxviixvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) Subject to Section 2(a), the Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide services to the Company pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and shall include such customary warranties and guarantees as may be reasonably required with respect to the goods and services so furnished.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(f) If the Manager uses or licenses intellectual property owned by Third Parties in the performance of services under this Agreement, the Manager shall obtain and maintain any such licenses and authorizations necessary to authorize its use of such intellectual property in connection with such services.
(g) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 5 contracts
Samples: Management Agreement (Atlas Resources Public #16-2007 (B) L.P.), Management Agreement (Atlas Energy Resources, LLC), Management Agreement (Atlas Energy Resources, LLC)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations guidelines attached hereto as Schedule 1 (as may be modified from time to time with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of a majority of the Board Independent Directors, the “Guidelines”);
(ii) investigation, analysis, valuation and selection of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect engaging and supervising independent contractors that provide services relating to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiariesthe Investments, including (1) assisting the Company in developing criteria for debt including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, accounting advisory, securities brokerage, property management/operations, property condition, real estate and equity financing that is specifically tailored to the Company’s investment objectivesleasing advisory and brokerage, and (2) advising other financial and consulting services as the Company with respect Manager determines from time to obtaining appropriate financing for its investmentstime is advisable;
(v) advising the Company with respect to incentive plans that the Company may establish negotiating for the Independent Directorspurchase, sale, exchange or other disposition of any Investments;
(vi) purchasing coordinating and financing investments on behalf managing operations of any joint venture or co-investment interests held by the CompanyCompany and conducting all matters with the joint venture or co-investment partners;
(vii) providing coordinating and supervising all property managers, tenant operators, leasing agents and developers for the Company with portfolio managementadministration, leasing, management and/or development of any of the Investments;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(ix) conducting periodic on-site visits to properties to inspect the physical condition and operations of the properties and to evaluate the performance of a tenant or operator of its duties;
(x) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi) communicating on behalf of the Company with the past, current and prospective holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company Board of Directors modifications to any hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification status as a REIT real estate investment trust (“REIT”) and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvi) furnishing reports assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or experience with respect to its Subsidiaries, if any, by the Managertarget assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect theretoREITs;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors and Manager shall reasonably request agree from time to time or as the Manager shall deem appropriate under the particular circumstances; and;
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws; and
(xxvii) traveling in connection with the performance of any services or activities relating to our assets, operations or investment analysis. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates; provided, that any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than could be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors to the extent required by any Board policy.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, asset managers, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents of any affiliate of the Manager). The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser; (ii) reports and information on the Company’s operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and any policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 4 contracts
Samples: Management and Advisory Agreement (New Senior Investment Group Inc.), Management and Advisory Agreement (New Senior Investment Group Inc.), Management and Advisory Agreement (New Senior Investment Group Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis, valuation and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estateestate brokerage, investment banking, securities leasing services, mortgage servicing, mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company’s expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiii) counseling the Company regarding the maintenance of its status as a real estate investment trust and monitoring compliance with the various real estate investment trust qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to its target assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of its target assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, mortgage servicing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms’-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company’s operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 4 contracts
Samples: Management and Advisory Agreement (New Residential Investment Corp.), Management and Advisory Agreement (New Residential Investment Corp.), Management and Advisory Agreement (New Residential Investment Corp.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its SubsidiariesCompany, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms and conditions of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company (and all subsidiaries and joint ventures of the Company), at all times will be subject to the supervision supervision, direction and direction management of the Board of Directors Trustees and will have only such functions and authority as the Board of Directors Company may delegate to it. The Company hereby reserves to a majority of the Board of Trustees (three (3) of whom must be independent) the following powers:
(i) the authority to determine or change the strategic direction of the Company at any time and in the sole discretion of the Board of Trustees;
(ii) the approval of prospective Investments, includingto the extent required by the Investment Manual or the Conflicts of Interest Policy, which may not be amended in a manner that is detrimental to the Company without limitationapproval by a majority of the Independent Trustees, it being understood that the Board of Trustees shall have the power to reject prospective Investments, even if such Investments comply with the criteria outlined in the Investment Manual;
(iii) the approval or disapproval of prospective dispositions of Investments, to the extent required by the Investment Manual, as it may be amended by the Board of Trustees from time to time;
(iv) the approval of the terms of loan documents for the Company’s financings;
(v) the approval of the Company’s annual budget (which shall address in reasonable detail, among other matters, financing plans and capital planning, it being understood that the Manager will submit such budget in advance to the Board of Trustees for review and approval, and will provide quarterly updates of performance against the annual budget to the Board of Trustees;
(vi) the approval of the retention of the Company’s registered public accountants;
(vii) the approval of any material transaction between the Company and the Manager and its Affiliates, other than transactions pursuant to this Agreement, the Property Management Agreement and other transactions in effect as of the Distribution Date;
(viii) the issuance of equity or debt securities by the Company;
(ix) the grant of equity incentive awards by the Company;
(x) the entry into joint ventures by the Company or its Subsidiaries;
(xi) the approval of entry into any transaction that would constitute a Change in Control; and
(xii) such other matters as may be determined by the Board of Trustees from time to time.
(c) The Company, subject to Section 2(b), hereby delegates the following functions and authority identified herein and delegated to the Manager herebyManager. The Subject to the Section 2(b), the Manager will be responsible for managing the assets and the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming sourcing, investigating and maintaining evaluating prospective Investments and dispositions of Investments, subject to and consistent with the Investment CommitteeManual, which will have the following responsibilities: (A) proposing the Investment Guidelines and making recommendations with respect thereto to the Board of DirectorsTrustees, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.where applicable;
(ii) serving as the Company’s consultant subject to and consistent with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment GuidelinesManual, in each case subject to conducting negotiations with brokers, sellers and purchasers, and their respective agents and representatives, investment bankers and owners of privately and publicly held real estate or related assets, regarding the approval purchase, sale, exchange or other disposition of the Board of Directorsany Investments;
(iii) serving as managing and monitoring the Company’s consultant operating performance of Investments and providing periodic reports to the Board of Trustees, including comparative information with respect to the selection, purchase, monitoring such operating performance and disposition of the Company’s investmentsbudgeted or projected operating results;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is are specifically tailored to the Company’s investment objectives, objectives and (2) advising making available to the Company the Manager’s knowledge and experience with respect to obtaining appropriate financing for its investmentstarget assets;
(v) advising engaging and supervising independent contractors that provide services relating to the Company with respect or the Investments, including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, accounting advisory, securities brokerage, property management/operations, property condition, real estate and leasing advisory and brokerage, and other financial and consulting services reasonably necessary for Manager to incentive plans perform its duties hereunder (it being understood that the Company may establish for Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent DirectorsTrustees and any committee of the Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors);
(vi) purchasing subject to any required approval of the Board of Trustees, negotiating, on behalf of the Company, the terms of loan documents for the Company’s financings;
(vii) enforcing, monitoring and financing investments managing compliance with loan documents to which the Company is a party on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging coordinating and supervising, on behalf managing operations of any joint venture or co-investment interests held by the Company and at conducting all matters with the Company’s expense, independent contractors that provide real estate, joint venture or co-investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments)partners;
(ix) coordinating and supervising all property managers, tenant operators, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(x) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxi) performing administering bookkeeping and supervising the performance of administrative accounting functions necessary in as are required for the management and operation of the Company Company, contracting for audits and preparing or causing to be prepared such periodic reports and filings as may be agreed upon required by any governmental authority in connection with the Manager ordinary conduct of the Company’s business, and otherwise advising and assisting the Board of DirectorsCompany with its compliance with applicable legal and regulatory requirements, including, without limitation, periodic reports, returns or statements required under the services in respect Exchange Act, the Code and any regulations or rulings thereunder, the securities and tax statutes of any equity incentive plan jurisdiction in which the Company may establish for is obligated to file such reports, or the Independent Directors, the collection of revenues rules and the payment regulations promulgated under any of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangementsforegoing;
(xii) counseling advising and assisting in the preparation and filing of all offering documents, registration statements, prospectuses, proxies, and other forms or documents filed with the SEC pursuant to the Securities Act or any state securities regulators (it being understood that the Company shall be responsible for the content of any and all of its offering documents, SEC filings or state regulatory filings, and that Manager shall not be held liable for any costs or liabilities arising out of any misstatements or omissions in connection with policy decisions the Company’s offering documents, SEC filings, state regulatory filings or other filings referred to be made in this subparagraph, whether or not material (except by the Board reason of Directorsacts constituting bad faith, willful misconduct, gross negligence or reckless disregard of Manager’s duties under this Agreement);
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and(it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent Trustees and any Committee of the Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors);
(xiv) taking all necessary actions to enable the Company to make required tax filings and reports, if applicable, taxable including soliciting shareholders for required information to the extent required by the provisions of the Code applicable to REITs;
(xv) counseling the Company regarding the maintenance of its status as a REIT subsidiaries and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(iixvi) conduct quarterly counseling the Company regarding the maintenance of its exemption from the Investment Company Act and monitoring compliance reviews with respect theretothe requirements for maintaining an exemption from the Investment Company Act;
(xvii) counseling the Company in connection with policy decisions to be made by the Board of Trustees;
(xviii) evaluating and recommending to the Board of Trustees modifications to any hedging strategies in effect on the date hereof and engaging in hedging activities;
(xix) communicating with the Company’s investors and analysts as required to satisfy reporting or other requirements of any governing body or exchange on which the Company’s securities are traded and to maintain effective relations with such investors;
(xx) investing and re-investing any moneys and securities of the Company (including investing in short-term Investments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to shareholders and partners of the Company) and advising the Company as to its capital structure and capital raising;
(xxi) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Trustees;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors Trustees from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Trustees and Manager shall deem appropriate under the particular circumstancesagree from time to time; and
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable lawslaws and regulations in all material respects, subject to the Company providing appropriate, necessary and timely funding of capital. The Board of Trustee has dispositive power in the event of any conflict between the Board of Trustees and the Manager with respect to the functions and authority delegated to the Manager above. Without limiting the foregoing, the Manager will perform portfolio management services on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(cd) Subject to Section 2(b) above and the Conflicts of Interest Policy, the Manager may enter into agreements with other parties in connection with its duties hereunder.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents of any Affiliate of the Manager).
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Trustees, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser; (ii) reports and information on the Company’s operations and asset performance; and (iii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company required by the Board of Trustees in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, as well as all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Trustees to enable the Board of Trustees to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Investment Manual and any policies approved by the Board of Trustees.
(i) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 12(b) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Asset Management Agreement, Asset Management Agreement (Spirit Realty Capital, Inc.), Asset Management Agreement (Spirit MTA REIT)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development, brokerage, financial advisory, custodial and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare, at the sole cost and expense of the Company, regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Management Agreement (Resource Capital Corp.), Management Agreement (Resource America, Inc.), Management Agreement (Resource Capital Corp.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments assets and day-to-day operations of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the CompanyCompany and its Subsidiaries, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and its Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsacquisition criteria and parameters for Acquisitions, borrowings borrowings, financing transactions, and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsAcquisition opportunities;
(iii) serving as the Company’s consultant with respect to prospective Acquisitions by the selectionCompany and dispositions of assets, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as engaging and supervising independent contractors that provide services relating to the Company or any of its Subsidiaries or the Company’s consultant with respect to decisions regarding any financingsassets, hedging activities including, but not limited to, investment banking, legal or borrowings undertaken by the Company or its Subsidiariesregulatory advisory, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivestax advisory, due diligence, accounting advisory, securities brokerage, brokerage, and (2) advising other financial, brokerage and consulting services as the Company with respect Manager determines from time to obtaining appropriate financing for its investmentstime is advisable;
(v) advising negotiating the Company with respect to incentive plans that the Company may establish for the Independent Directorssale, exchange or other disposition of any asset;
(vi) purchasing coordinating and financing investments on behalf managing operations of any joint venture or co-investment interests held by the CompanyCompany or any of its Subsidiaries and conducting all matters with the joint venture or co-investment partners;
(vii) providing coordinating and supervising, all matters related to the Company Company’s or any of its Subsidiaries’ assets, including the leasing and/or sale and management of such assets and retaining agents, managers or other advisors in connection with portfolio managementsuch coordination and supervision;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and its Subsidiaries and performing and supervising the performance of such other administrative functions necessary in the management of the Company and its Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the past, current and prospective holders of any equity or debt securities of the Company and its Subsidiaries as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to any hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Companyactivities, consistent with such strategies, as so modified in effect from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to its target assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and its Subsidiaries’ assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company and its Subsidiaries (including investing in short-term investments, pending investment in Acquisitions, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders shareholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company and its Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xx) taking all necessary actions to enable the Company and its Subsidiaries to make required tax filings and reports, including soliciting shareholders for required information to the extent provided by the provisions of the Code;
(xxi) assisting the Company and its Subsidiaries in complying with all regulatory requirements applicable to the Company thereto in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company or any of its Subsidiaries may be involved or to which the Company or any of its Subsidiaries may be subject arising out of the Company’s or any of its Subsidiaries’ day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company and its Subsidiaries to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company and its Subsidiaries as the Board of Directors and Manager shall reasonably request agree from time to time or as the Manager shall deem appropriate under the particular circumstances; and;
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws; and
(xxvi) traveling in connection with the performance of any services or activities relating to the Company’s and its Subsidiaries’ assets, operations, Acquisitions or investment analysis. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to Acquisitions. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates, including to provide the services above, provided, that any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than could be obtained from a third party on an arm’s length basis and (B) to the extent the same do not fall within policies approved by the Board of Directors, approved by a majority of the Independent Directors to the extent required by any Board policy.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, asset managers, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents or any affiliate of the Manager). The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any investment, (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s Acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Management and Advisory Agreement, Management and Advisory Agreement (Fortress Transportation & Infrastructure Investors LLC), Management and Advisory Agreement (Fortress Transportation & Infrastructure Investors LLC)
Appointment and Duties of the Manager. (a) The Company and the Operating Partnership (in each case, on its own behalf and on behalf of its Subsidiaries) hereby appoints appoint the Manager to manage the investments Assets and the day-to-day operations of the Company and its Subsidiaries, Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable best efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth herein except where a higher standard of care is specified in Section 7 hereofthis Agreement. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Parties acknowledge that (i) the Manager is an Affiliate of Xxxx; and (ii) the Manager may perform its services for the Company Entities in part through the personnel and facilities of Xxxx or other Xxxx Affiliates.
(c) The Manager, in its capacity as manager of the investments Assets and the day-to-day operations of the CompanyCompany Entities, at all times will be subject to the supervision and direction oversight of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, including, without limitation, including the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Entities and will perform (or cause to be performed) in accordance with the guidelines that may be adopted from time to time by the Board of Directors, and subject to the budget limitations set forth in Section 11(a), such services and activities relating to the investments Assets and operations of the Company Entities as may be appropriateset forth herein, which may include, without limitationincluding:
(i) forming administering the day-to-day business and maintaining performing and supervising the Investment Committeeperformance of such other administrative functions necessary or appropriate for the Company Entities’ management, which will have including the following responsibilities: (A) proposing the Investment Guidelines to the Board collection of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio revenues and the Company’s hedging payment of debts and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.obligations;
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyCompany Entities;
(xiii) performing engaging, retaining and supervising supervising, on behalf of a Company Entity, such services of accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, investment banks, valuation firms, financial advisors, due diligence firms, underwriting review firms and banks as the performance of administrative functions Manager deems necessary or advisable in connection with the management and operations of the such Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functionsEntity;
(xiiv) communicating on behalf of the Company with the holders of any equity or debt of the securities of the a Company Entity as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiv) counseling preparing for the review and approval of the Board of Directors and filing on behalf of the Company Entities current reports on Form 8-K, quarterly reports on Form 10-Q and annual reports on Form 10-K, proxy statements and other reports required to be filed by the Exchange Act with the SEC and otherwise satisfying reporting and compliance obligations under applicable securities laws or the rules of the New York Stock Exchange and any exchange on which securities of a Company Entity are listed;
(vi) arranging marketing materials, advertising, industry group activities (such as conference participation and industry organization memberships) and other promotional efforts designed to promote the business of the Company Entities;
(vii) communicating with analysts and the investment community generally;
(viii) sourcing, evaluating, submitting for Board of Director approval, and, subject to obtaining such Board of Director approval, directing the issuance of any common or preferred stock issuances or other equity issuances;
(ix) drawing on existing lines of credit at such times as the Manager deems appropriate to support the business of the Company Entities and sourcing, facilitating, evaluating and submitting for Board of Director approval any other loan, indebtedness, guaranty or other financing arrangements necessary or appropriate in connection with policy decisions the business of the Company Entities and managing the Company’s and the Company Entities’ relationships with existing or potential lenders;
(x) evaluating and recommending to the Board of Directors hedging strategies and engaging in hedging activities, consistent with such strategies as modified from time to time, while maintaining the Company’s qualification as a REIT;
(xi) opening and managing Company Accounts and treasury/cash management activities on behalf of the Company Entities;
(xii) investing and reinvesting any money and securities in short-term investments pending investment in other investments; paying related fees, costs and expenses;
(xiii) advising the Board of Directors on capital structure and capital raising;
(xiv) negotiating with tenants any new leases, lease amendments, lease supplements or lease renewals, all in accordance with leasing standards promulgated by the Board of Directors from time to time, and causing the applicable Company Entity to perform its obligations under any such agreements and enforcing any related rights; provided, however, the negotiation and execution of any operating lease of a transmission and distribution Asset to an operator thereof (e.g., Sharyland Utilities, L.P.), and any amendments thereto, shall be made subject to the direction and, subject to procedures approved by the Board of Directors, approval of the Board of Directors;
(xiiixv) evaluating, negotiating, submitting for Board of Director approval, and, subject to receipt of such Board of Director approval, entering into, any project acquisitions from a Xxxx Affiliate in accordance with the terms of the Development Agreement or from third parties;
(xvi) working with tenants or other third parties to construct transmission and distribution projects, including causing a Company Entity to negotiate, enter into and perform its obligations under any related construction contracts, engineering, procurement and construction (EPC) contracts or other contracts related to such construction activities;
(xvii) preparing annual budgets, and any related amendments, for Board of Director approval and causing the Company Entities to perform and implement then-effective annual budgets;
(xviii) preparing financial statements;
(xix) coordinating the relationship with external auditors, subject to oversight from the Audit Committee or other appropriate governing body when appropriate;
(xx) administering bookkeeping and accounting functions as are required for the management and operation of the Company Entities;
(xxi) evaluating and recommending and, subject to obtaining approval of the Company hedging strategies Board of Directors, making any accounting policy changes;
(xxii) designing, preparing, updating and monitoring internal control over financial reporting and disclosure controls and procedures, subject to oversight from the Audit Committee or other appropriate governing body when applicable;
(xxiii) managing any internal audit function required by securities laws, exchange rules or the Board of Directors, including, if appropriate, engaging in hedging activities a third party firm on behalf of a Company Entity to provide such function, and managing the Companyrelationship with that firm, consistent subject to oversight from the Audit Committee or other appropriate governing body when appropriate;
(xxiv) sourcing, evaluating and submitting for Board of Director approval, and, subject to receipt of such Board of Director approval, entering into, any potential merger, acquisition, joint venture, financing, development, refinancing or disposition opportunities;
(xxv) coordinating and managing the business of any joint venture or co-investment interests a Company Entity holds directly or indirectly and conducting all matters with such strategies, as so modified from time to time, the joint venture or co-investment partners;
(xxvi) sourcing and evaluating relationships with potential project developers;
(xxvii) monitoring the insurance required under the Company’s qualification leases and sourcing and evaluating any insurance, such as director and officer insurance, and, subject to obtaining Board of Director or other appropriate approvals when applicable, causing a REIT and with the Investment GuidelinesCompany Entity to obtain any such insurance;
(xivxxviii) counseling enforcing the rights of Company Entities under any applicable insurance policies when and as appropriate, subject to oversight and direction from the Board of Directors or a committee thereof, when appropriate;
(xxix) assisting the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out tax laws and regulations, and, in accordance with Section 8(b)(ii) hereof, causing the Code and Company to qualify as a REIT for U.S. Treasury regulations promulgated thereunderfederal income tax purposes;
(xvxxx) managing all tax matters, including making necessary tax filings and causing each Company Entity to make any related payments that are owed to taxing authorities and filing appropriate tax appeals;
(xxxi) scheduling, managing and preparing materials for all meetings of the Board of Directors or committees thereof;
(xxxii) counseling the Company regarding the maintenance Board of its exemption from status as an investment company under the Investment Company Act and monitoring compliance Directors in connection with the requirements for maintaining such exemptionany policy decisions;
(xvixxxiii) subject to obtaining Board of Director or other appropriate Company approvals, handling and resolving all claims, disputes or controversies between Company Entities and third parties;
(xxxiv) furnishing the Board of Directors with reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager on behalf of a Company Entity, as appropriate;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixxxv) assisting the Company Entities in complying with all regulatory requirements applicable to the Company in Entities with respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActCompany Entities’ business;
(xxiixxxvi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by keeping the Board of Directors apprised of material events affecting the assets of the Company Entities, and, from time to time, at the request of the Board of Directors, making reports to the Company of its performance of the services set forth herein;
(xxvixxxvii) performing the functions and tasks delegated to the Company pursuant to that certain Delegation Agreement dated on or around the date hereof between Sharyland Utilities, L.P. and the Company related to responsibilities and rights under the Third Amended and Restated Company Agreement of Sharyland Distribution & Transmission Services, L.L.C.; and
(xxxviii) performing such other services as may be required from time to time for the management of, and other activities relating to to, the assets Assets and business and operations of the Company Entities as the Board of Directors shall reasonably request or the as Manager shall deem deems appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for shall have the right and on behalf, and power to establish an employee stock purchase plan (as such term is defined in section 423 of the Code) at the sole cost Company for the benefit of employees of the Manager, Xxxx and expensetheir Affiliates; provided that, the Manager shall fund all costs associated with any such plan, including the funds necessary to purchase shares of the Company, such services of ’s stock in the persons and firms referred open market pursuant to in Section 7(bthe plan.
(e) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, including accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Company Entities’ sole cost and expense.
expense (d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable subject to the Company, the Board last paragraph of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement10).
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Management Agreement (InfraREIT, Inc.), Management Agreement (InfraREIT, Inc.), Management Agreement (InfraREIT, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis, valuation and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estateestate brokerage, investment banking, securities leasing services, mortgage servicing, mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company’s expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiii) counseling the Company regarding the maintenance of its status as a real estate investment trust and monitoring compliance with the various real estate investment trust qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to its target assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of its target assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may retainenter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the CompanyCompany to provide property management, such asset management, leasing, mortgage servicing, development and/or similar services of to the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals Company (including, without limitation, accountantsPortfolio Management Services and Monitoring Services) with respect to the Investments, legal counsel pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and other professional service providers) hired by value to the Manager at assets of the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that; provided, in its sole judgment made in good faith, that (i) is any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms’-length basis and (B) to the extent the same do not in compliance with fall within the Investment provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) would adversely affect the qualification of the Company as a REIT under the Code or with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the prior written approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.and
Appears in 3 contracts
Samples: Management and Advisory Agreement (New Residential Investment Corp.), Management and Advisory Agreement (New Residential Investment Corp.), Management and Advisory Agreement (New Residential Investment Corp.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, Manager except to the extent that the Manager elects, as contemplated in its sole and absolute discretion, in accordance with the terms Section 14 of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Except as otherwise set forth herein (including Section 3(d)), the Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estateservices relating to the Investments, including, but not limited to, investment banking, legal advisory, tax advisory, accounting advisory, securities brokerage, insurancereal estate advisory and brokerage, legal, accounting, transfer agent, registrar and such other financial and consulting services as may be required relating the Manager determines from time to the Company’s operations or investments (or potential investments)time is advisable;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the Effective Time and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from the Investment Company Act;
(xvixiii) furnishing reports assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or experience with respect to its Subsidiaries, if any, by the Managertarget assets;
(xviixiv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such assets;
(xv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITsprovisions of the Code;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates (subject to Section 2(d) below), for the purpose of engaging one or more asset managers for and on behalf, and at the sole cost and expense, of the Company to provide operations management, asset management, personnel management, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to management agreement(s) with terms that are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided that any such agreements shall be subject to the Company’s prior written approval and the Manager shall remain liable for the performance of such Portfolio Management Services.
(d) Transactions between the Manager and any affiliate (including, but not limited to, any amendments to this Agreement or any issuance by the Company of equity to existing stockholders as of the Effective Time that would change the relative equity ownership percentages among such existing stockholders) must be approved in advance by the majority of the Independent Directors and be determined by such Independent Directors to be in the best interests of the Company. If any affiliate transaction involving the acquisition of an asset from the Manager or an affiliate of the Manager is not approved in advance by a majority of the Independent Directors, then the Manager may be required to repurchase the asset at the purchase price (plus closing costs) to the Company.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates, provided that Manager has consulted with the Company and reasonably determined in good faith that such services cannot be provided by the Company’s existing internal resources. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, performance and compliance with policies approved by the Board of Directors.
(i) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Merger Agreement (Gannett Co., Inc.), Management and Advisory Agreement (New Media Investment Group Inc.), Merger Agreement (New Media Investment Group Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the supervision and direction of the Board of Directors, the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, by the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing changes to the Investment Guidelines to be approved by the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly periodic basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly periodic basis, and (E) generally be responsible for conducting or and overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification requirements to qualify as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries TRSs and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded exempted from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such the qualification of the Company as a REIT or the Company’s status as an entity intended to be exempted from registration under the Investment Company Act or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq’s rules and requirements, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Management Agreement (American Capital Mortgage Investment Corp.), Management Agreement (American Capital, LTD), Management Agreement (American Capital Mortgage Investment Corp.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company's Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s 's consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company independent members of the Board of Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the "Guidelines") and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that which provide real estateestate brokerage, investment bankingbanking and leasing services, mortgage brokerage, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company's expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification 's status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiii) counseling the Company regarding the maintenance of its status as a real estate investment trust and monitoring compliance with the various real estate investment trust qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company's investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities and other real estate-related assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of mortgage loans (including on a portfolio basis), real estate, real estate securities and other real estate-related assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s 's day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the "Portfolio Management Services") on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company's portfolio of assets; the collection of information and the submission of reports pertaining to the Company's assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company's portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the "Monitoring Services") on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers' delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms'-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the independent members of the Board of Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company's prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company's prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company's operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company's books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company's acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager's acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money ("Excess Funds") in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager's unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 3 contracts
Samples: Management and Advisory Agreement (Newcastle Investment Corp), Management and Advisory Agreement (Newcastle Investment Corp), Management and Advisory Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business and affairs of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement Agreement, to the directions of the Executive Committee and to the supervision of, and such further limitations or parameters of the Board. Except as may be imposed from time to time byotherwise provided in this Agreement, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company reimburses the Manager for such purposes as set forth costs and expenses in accordance with Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third partiesparties and/or its Affiliates.
(b) The Manager, in its capacity as manager of the investments business and the operations affairs of the Company, at all times will be subject to the supervision and direction of the Executive Committee and the supervision of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, managing the functions Company’s activities and authority identified herein business affairs in conformity with the Company’s business objectives and delegated other policies that are approved and monitored by the Board and/or the Executive Committee.
(c) Subject to the oversight of the Board and the terms and conditions of this Agreement, the Manager hereby. The Manager will have plenary authority with respect to the management of the business and affairs of the Company and will be responsible for the day-to-day operations management of the Company and Company; provided, however, that decisions with respect to portfolio companies shall require approval by the Executive Committee. The Manager will perform (or cause to be performedperformed through one or more of its Affiliates or Subsidiaries) such services and activities relating to the investments business and operations affairs of the Company as may be appropriateappropriate or otherwise mutually agreed from time to time, which may include, without limitation:
(i) forming originating, recommending opportunities to form, acquiring, structuring, coordinating and maintaining assisting with managing operations of any joint venture or portfolio companies held by the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance Company and conducting all matters with the Investment Guidelines on a monthly basis, (C) reviewing joint venture partners consistent with the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategies of the Company’s investment portfolio and Company (including, for the Company’s hedging and financing strategies on a monthly basisavoidance of doubt, and (E) generally be responsible for conducting or overseeing the provision power to structure joint ventures that provide that any controlling interest of the services set forth in Company shall be forfeited upon termination of this Section 2.Agreement);
(ii) serving as an advisor to the Company’s consultant Company with respect to the establishment and periodic review of the investmentsCompany’s business objectives, borrowings financing activities and operations operations, any modifications to which will be approved by a majority of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsBoard;
(iii) serving as identifying, investigating, analyzing, and selecting possible acquisition opportunities and originating, negotiating, acquiring, consummating, documenting, monitoring, evaluating, financing, retaining, identifying potential acquirers, investigating potential dispositions, selling, negotiating for prepayment, restructuring, refinancing, hypothecating, pledging or otherwise disposing of portfolio companies and other interests consistent in all material respects with the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsbusiness objectives;
(iv) serving as with respect to prospective purchases, sales, exchanges or other dispositions, conducting negotiations on the Company’s consultant behalf with respect to decisions regarding any financingssellers, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivespurchasers, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsother counterparties and, if applicable, their respective agents, advisors and representatives;
(v) advising negotiating and entering into, on the Company Company’s behalf, repurchase agreements, interest rate or currency swap agreements, hedging arrangements, financing arrangements (including bank loans, institutional sources of financing and/or one or more credit facilities), foreign exchange transactions, derivative transactions, and other agreements and instruments required or appropriate in connection with respect to incentive plans that the Company may establish for the Independent DirectorsCompany’s activities;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors contractors, advisors, consultants, attorneys, accountants, auditors, administrators, and other service providers (which may include Affiliates of the Manager) that provide real estatevarious services with respect to the Company, including, without limitation, investment banking, securities brokerage, insuranceconsulting services, legalcredit analysis, accountingrisk management services, transfer agentasset management services, registrar loan servicing, other financial, legal or accounting services, due diligence services, underwriting review services, and such all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations activities or investments acquisitions (or potential investmentsacquisitions);
(ixvii) providing executive and administrative personnel, office space and office services for the Company and as required in rendering services to the Company;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling advising the Company in connection with policy decisions to be made by the Board of Directorsor the Executive Committee;
(xiiixi) engaging one or more sub-managers with respect to the management of the Company, including, where appropriate, Affiliates of the Manager;
(xii) evaluating and recommending to the Company Executive Committee hedging strategies and engaging in hedging activities on behalf of the Company’s behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelinesbusiness objectives;
(xivxiii) counseling advising the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in Company’s exclusion from the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from the definition of an investment company under the Investment Company Act;
(xvixiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager and its Affiliates;
(xviixv) monitoring the operating performance of the Company’s investments portfolio companies and providing periodic reports with respect thereto to the Board of Directorsand the Executive Committee, including comparative information with respect to such operating performance and budgeted or projected operating resultsresults and providing advice regarding the management of joint ventures and portfolio companies;
(xviiixvi) investing and re-investing deploying any monies moneys and securities of the Company (including in holding short-term investmentsinterests pending deployment in other portfolio companies, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company’s shareholders and partners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain a qualified accountants independent public accounting firm and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly periodic compliance reviews with respect thereto;
(xxxviii) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s business activities, including (1) preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct and (2) facilitating compliance with the Xxxxxxxx-Xxxxx Act of 2002 and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010;
(xxiixx) assisting the Company in taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxi) placing, or arranging for the placement of, all orders pursuant to the Manager’s acquisition determinations for the Company either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer), and selecting the markets in which such orders shall be executed;
(xxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsactivities (other than with the Manager or its Affiliates), subject to such reasonable limitations or parameters as may be imposed from time to time by the Board or the Executive Committee;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board or the Executive Committee from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) serving as the Company’s advisor with respect to decisions regarding any of the Company’s financings, hedging activities or borrowings undertaken by the Company, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s business objectives, and (2) advising the Company with respect to obtaining appropriate financing for the Company’s assets (which, in accordance with applicable law and the terms and conditions of this Agreement and the Company’s Governing Agreements may include financing by the Manager or its Affiliates);
(xxvi) providing the Company with portfolio management and other related services;
(xxvii) arranging marketing materialsmaterials and other related documentation, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxvxxviii) using commercially reasonable efforts making recommendations to cause expenses incurred by the Company’s Repurchase Committee and/or the Board, as applicable, with respect to repurchases under the Company’s Share Repurchase Plan or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;Tender Offers; and
(xxvixxix) performing such other services as may be required from time to time for in connection with the management of the business and other activities relating to the assets affairs of the Company and its activities as the Board of Directors or the Executive Committee shall reasonably request or and/or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons Persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company, which may include Affiliates of the Manager; provided that any such services may be provided by Affiliates only to the extent (i) such services are on arm’s length terms and competitive market rates in relation to terms that are then customary for agreements regarding the provision of such services to companies that have assets similar in type, quality and value to the assets of the Company and its Subsidiaries, (ii) the specific type of transaction is expressly provided for under this Agreement or the Company’s Governing Agreements (including the payment of Management Fees, Monitoring Fees, Transaction Fees, Regulated Broker Dealer Fees, Loan Servicing Fees, Service Costs, Capstone Fees and Break-Up Fees) or (iii) such services are approved by a majority of the Independent Directors. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall keep the Board and the Executive Committee reasonably informed on a periodic basis as to any services provided by Affiliates of the Manager.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s and its Subsidiaries’ status as an entity entities excluded from investment company status under the Investment Company Act, Act or (iiiii) would materially violate the Conduct Policies, any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed and its Subsidiaries or that would otherwise not be permitted by the Company’s applicable Governing InstrumentsAgreements. If the Manager is ordered to take any action by the Board of DirectorsExecutive Committee, the Manager shall seek to promptly notify the Board of Directors Executive Committee if it is the Manager’s reasonable judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing InstrumentsAgreements. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, the Executive Committee or the Company’s stockholders shareholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company (including the Board of Directorsand the Executive Committee) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqCode, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If .
(g) As frequently as the Manager is not able to provide a servicemay deem reasonably necessary or advisable, or in at the reasonable judgment of the Manager it is not prudent to provide a service, without the approval direction of the Board of Directorsor the Executive Committee, as applicable, then the Manager shall prepare, or, at the sole cost and expense of the Company, cause to be excused from providing such service prepared, (i) reports and other information on the Company’s operations and (ii) other information relating to any proposed or consummated acquisition as may be reasonably requested by the Company.
(h) The Manager shall prepare, or, at the sole cost and expense of the Company, cause to be prepared, all periodic reports and financial statements with respect to the Company reasonably required by the Board or the Executive Committee in order for the Company to comply with its Governing Agreements, or any other materials required to be filed with any governmental body or agency, including but not limited to the SEC, and shall not prepare, or, at the sole cost and expense of the Company, cause to be in breach prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of this Agreementthe Company’s books of account by a nationally recognized independent accounting firm.
(i) until The Manager shall prepare, or, at the applicable approval has been obtainedsole cost and expense to the Company, cause to be prepared, regular reports for the Board or the Executive Committee to enable the Board or the Executive Committee to review the Company’s acquisitions, portfolio composition and characteristics, performance, asset performance and consistency with the Company’s business objectives, and policies approved by the Board.
Appears in 2 contracts
Samples: Management Agreement (KKR Private Equity Conglomerate LLC), Management Agreement (KKR Private Equity Conglomerate LLC)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(viivi) providing the Company with portfolio management;
(viiivii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixviii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification and maintenance of the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding its qualification and the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixv) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixvi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct or by the NYSE or other stock exchange requirements as applicable;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxivxxiii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s or any Subsidiary’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments, the Conduct Policies or other Company compliance or governance policies or procedures. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such the qualification of the Company as a REIT or the Company’s or any Subsidiary’s status as an entity excluded from investment company status under the Investment Company Act or violate any such law, rule or regulation or the Company’s Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, Directors or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaqthe NYSE, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (Orchid Island Capital, Inc.), Management Agreement (Orchid Island Capital, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estateservices relating to the Investments, including, but not limited to, investment banking, legal advisory, tax advisory, accounting advisory, securities brokerage, insurancereal estate advisory and brokerage, legal, accounting, transfer agent, registrar and such other financial and consulting services as may be required relating the Manager determines from time to the Company’s operations or investments (or potential investments)time is advisable;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvixiii) furnishing reports assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or experience with respect to its Subsidiaries, if any, by the Managertarget assets;
(xviixiv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such assets;
(xv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITsprovisions of the Code;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates (subject to Section 2(d) below), for the purpose of engaging one or more asset managers for and on behalf, and at the sole cost and expense, of the Company to provide operations management, asset management, personnel management, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided, that (i) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (ii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) Transactions between the Manager and any affiliate (including, but not limited to, any amendments to this Agreement or any issuance by the Company of equity to existing shareholders as of the date of this Agreement that would change the relative equity ownership percentages among such existing shareholders) must be approved in advance by the majority of the Independent Directors and be determined by such Independent Directors to be in the best interests of the Company. If any affiliate transaction involving the acquisition of an asset from the Manager or an affiliate of the Manager is not approved in advance by a majority of the Independent Directors, then the Manager may be required to repurchase the asset at the purchase price (plus closing costs) to the Company.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. Commencing from the Listing, the Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, performance and compliance with policies approved by the Board of Directors.
(i) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management and Advisory Agreement (New Media Investment Group Inc.), Management and Advisory Agreement (New Media Investment Group Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, of the Board of DirectorsBoard. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyCompany and any Subsidiaries, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and any Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company and any Subsidiaries as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company Investment Guidelines and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as parameters for the Company’s consultant with respect and any Subsidiaries’ investments, financing activities and operations, which review will occur no less often than annually, any modification to the selection, purchase, monitoring and disposition which will be approved by a majority of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(viii) purchasing investigating, analyzing and financing selecting possible investment opportunities and acquiring, financing, retaining, selling, restructuring or disposing of investments on behalf of consistent with the CompanyInvestment Guidelines;
(viiiii) providing with respect to prospective purchases, sales or exchanges of investments, conducting negotiations on the Company Company’s and any Subsidiaries’ behalf with portfolio managementsellers, purchasers and brokers and, if applicable, their respective agents and representatives;
(viiiiv) negotiating and entering into and executing, on the Company’s behalf, repurchase agreements, interest rate agreements, swap agreements, brokerage agreements, resecuritizations, securitization warehouse facilities and other agreements and instruments required for the Company to conduct the Company’s business;
(v) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurancemortgage brokerage, legalother financial services, accountingdue diligence services, transfer agentunderwriting review services, registrar legal and such accounting services, custodial services and all other services (including transfer agent and registrar services) as may be required relating to the Company’s and any Subsidiaries’ operations or investments (or potential investments);
(ixvi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and any Subsidiaries and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Companyus;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s and any Subsidiaries’ management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of DirectorsBoard;
(xiiixi) evaluating and recommending to the Company Board hedging strategies and engaging in hedging activities on behalf of the Company’s behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its the Company’s qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderusing commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(xvxiii) counseling the Company regarding the maintenance of its the Company’s exemption from the status as of an investment company required to register under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexemption and using commercially reasonable efforts to cause the Company to maintain such exemption from such status;
(xvixiv) furnishing reports and statistical and economic research to the Company regarding the Company’s and any Subsidiaries’ activities and services performed for the Company or its Subsidiaries, if any, and any Subsidiaries by the Manager;
(xviixv) monitoring the operating performance of the Company’s and any Subsidiaries’ investments and providing periodic reports with respect thereto to the Board of DirectorsBoard, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing reinvesting any monies moneys and securities of the Company and any Subsidiaries (including investing in short-term investments pending investment in other investments, payment of fees, costs and expenses, or payments of dividends or distributions to the Company’s and any Subsidiaries’ stockholders and partners of the Companypartners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries subsidiaries, and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s and any Subsidiaries’ business activities, including preparing or causing to be prepared assisting in the preparation of all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act, or by the NYSE or other stock exchange requirements, as applicable;
(xxiixx) assisting the Company in taking all necessary actions action to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting information from stockholders for required information to the extent necessary under required by the provisions of the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxi) placing, or arranging for the placement of, all orders pursuant to the Manager’s investment determinations for the Company either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer);
(xxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s and any Subsidiaries’ day-to-day operationsoperations (other than with the Manager or its Supervised Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing, in each case consistent with the Investment Guidelines;
(xxv) serving as the Company’s consultant with respect to decisions regarding any of the Company’s financings, hedging activities or borrowings undertaken by the Company, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for the Company’s and any Subsidiaries’ investments;
(xxvi) providing the Company with portfolio management;
(xxvii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxvxxviii) using commercially reasonable efforts to cause expenses incurred by or on behalf of maintaining the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to timeCompany’s web site;
(xxvixxix) performing such other services as may be required from time to time for the management and other activities relating to the Company’s and any Subsidiaries’ assets of the Company and business as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxx) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity exempted or excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or any Subsidiary or of any exchange on which the securities of the Company or any Subsidiary may be listed or that would otherwise not be permitted by the Company’s or any Subsidiaries’ Governing Instruments. If the Manager is ordered to take any action by the Board of DirectorsBoard, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, or the Company’s or any Subsidiary’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of DirectorsBoard) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file or assist in the filing of any registration statement or other filing required to be made under the Securities Act, the Exchange Act, Nasdaqthe NYSE’s Listed Company Manual, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver assist in the delivery of financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a serviceIf, or in the reasonable judgment of the Manager Manager, it is not prudent to provide a service, service without the approval of the Board of Directors, as applicableBoard, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (Western Asset Mortgage Capital Corp), Management Agreement (Western Asset Mortgage Capital Corp)
Appointment and Duties of the Manager. (a) The Company Service Recipients hereby appoints appoint the Manager to manage the investments implement their business strategy and day-to-day operations of the Company provide executive and its Subsidiariesmanagement services, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directorsrelevant Governing Body. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company Service Recipients for such purposes as set forth in Section 7 hereof7. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Companysuch, at all times will be subject to the supervision and direction of the Board Governing Bodies, will act in a manner that is in compliance with the Governing Instruments of Directors the Service Recipients, and will have only such functions and authority as the Board of Directors Governing Bodies may delegate to it, including, without limitation, managing each Service Recipient’s business affairs in conformity with policies that are approved and adopted by the functions and authority identified herein and delegated relevant Governing Body.
(c) In connection with its performance of its duties hereunder with respect to the Service Recipients’ operations, the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such related services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming administering the day-to-day operations and maintaining performing and supervising the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines performance of such other administrative functions necessary to the Board management of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted each Service Recipient as may be agreed upon by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio Manager and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect theretorelevant Governing Body, including, without limitation, the Investment Guidelines, in each case subject to collection of revenues and the approval payment of debts and obligations of the Board Service Recipients and maintenance of Directorsappropriate computer services to perform such administrative functions;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viiiii) engaging and supervising, on the Service Recipients’ behalf of the Company and at the Company’s Service Recipients’ expense, independent contractors that provide real estatelegal and accounting services, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such all other services (including transfer agent and registrar services) as may be required relating to the Company’s Service Recipients’ operations or investments (or potential proposed operations or investments);
(ixiii) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyService Recipients;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xiiv) communicating on the Service Recipients’ behalf of the Company with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiv) monitoring the each Service Recipient’s operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directorsrelevant Governing Body, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiivi) investing and re-investing reinvesting any monies moneys and securities of the Company Service Recipients (including investing in short-term investments pending investment in other investments, payment of fees, costs and expenses, or payments of dividends or distributions to their stockholders and partners of the Companypartners) and advising the Company Service Recipients as to its their capital structure and capital-raising activitiescapital raising;
(xixvii) causing the Company Service Recipients to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable law, and to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxviii) causing assisting the Company to qualify Service Recipients in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxiix) assisting the Company Service Recipients in complying with all regulatory requirements applicable to the Company Service Recipients in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act, or by NYSE;
(xxiix) assisting the Service Recipients in taking all necessary actions action to enable the Company and any Subsidiaries them to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations required by applicable to REITslaw;
(xxiiixi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company each Service Recipient may be involved or to which the Company each Service Recipient may be subject arising out of the Company’s their day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the relevant Governing Body;
(xxivxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of each Service Recipient to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the relevant Governing Body from time to time;
(xiii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the CompanyService Recipients’ business;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company each Service Recipient’s properties and business, as the Board of Directors relevant Governing Body shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixv) using commercially reasonable efforts to cause the Company Service Recipients to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyService Recipients, such services of the persons and firms Persons referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the CompanyService Recipients. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Service Recipients’ sole cost and expense.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s Service Recipients’ status as an entity entities excluded from investment company status under the Investment Company Act, or (iiiii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company Service Recipients or of any exchange on which the securities of the Company any Service Recipient may be listed or that would otherwise not be permitted by the Company’s applicable Governing Instruments. If the Manager is ordered to take any action by the Board of Directorsa Governing Body, the Manager shall promptly notify the Board of Directors such Governing Body if it is the Manager’s judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the CompanyService Recipients, the Board of DirectorsGoverning Bodies, or the Company’s stockholders Service Recipients’ equityholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company Service Recipients (including the Board of DirectorsGoverning Bodies) agrees agree to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE’s Rules, the Code or other applicable law, rule or regulation on behalf of the Company Service Recipients in a timely manner. The Company Service Recipients further agrees agree to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If Service Recipients.
(g) The Manager shall prepare, or, at the Manager is not able sole cost and expense of the Service Recipients, cause to provide a servicebe prepared, all reports, financial or otherwise, with respect to the Service Recipients reasonably required by the relevant Governing Body in order for the Service Recipients to comply with their Governing Instruments, or in any other materials required to be filed with any governmental body or agency, and shall prepare, or, at the reasonable judgment sole cost and expense of the Service Recipients, cause to be prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of their books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare, or, at the sole cost and expense to the Service Recipients, cause to be prepared, regular reports for the Governing Bodies to enable each Governing Body to review its Service Recipients’ performance and compliance with the policies approved by the Governing Body.
(i) Officers, employees and agents of the Manager it and its Affiliates may serve as directors, officers, agents, nominees or signatories for the Service Recipients, to the extent permitted by their respective Governing Instruments, by any resolutions duly adopted by the relevant Governing Body. When executing documents or otherwise acting in such capacities for the Service Recipients, such Persons shall indicate in what capacity they are executing on behalf of the applicable Service Recipient. Without limiting the foregoing, while this Agreement is not prudent in effect, the Manager will provide PubCo with a management team, including a Chief Executive Officer and President or similar positions, along with appropriate support personnel, to provide a servicethe management services to be provided by the Manager to PubCo hereunder, without who shall devote such of their time to the approval management of PubCo as necessary and appropriate, commensurate with the level of activity of PubCo from time to time.
(j) The Manager, at its sole cost and expense, shall maintain reasonable and customary “errors and omissions” insurance coverage and other customary insurance coverage in respect to its obligations and activities under, or pursuant to, this Agreement, naming the Service Recipients as additional insured.
(k) The Manager, at its sole cost and expense, shall provide such internal audit, compliance and control services as may be required for the Service Recipients to comply with applicable law (including the Securities Act and Exchange Act), regulation (including SEC regulations) and the rules and requirements of NYSE and as otherwise reasonably requested by the Service Recipients or the Board from time to time.
(l) The Manager acknowledges receipt of PubCo’s Affiliated Transactions Best Practices Policy (the “Conduct Policies”) and agrees to require the persons who provide services to the Service Recipients to comply with such Conduct Policies in the performance of such services hereunder or such comparable policies as shall in substance hold such persons to at least the standards of conduct set forth in the Conduct Policies.
(m) The Manager, at its sole cost and expense, shall maintain any required registration of the Board Manager or any Affiliate with the SEC under the Investment Advisers Act of Directors1940, as applicableamended, then or with any state securities authority in any state in which the Manager shall or its Affiliate is required to be excused from providing such service (and shall not be in breach of this Agreement) until the registered as an investment advisor under applicable approval has been obtainedstate securities laws.
Appears in 2 contracts
Samples: Management Agreement (RCS Capital Corp), Management Agreement (RCS Capital Corp)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company independent members of the Board of Directors (such policy guidelines as are in effect on the date hereof and attached hereto as Schedule 1, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estateestate brokerage, investment bankingbanking and leasing services, mortgage brokerage, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company’s expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiii) (Reserved)
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities and other real estate-related assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of mortgage loans (including on a portfolio basis), real estate, real estate securities and other real estate-related assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms’-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the independent members of the Board of Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company’s operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management and Advisory Agreement (Drive Shack Inc.), Management and Advisory Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Company Trust and the Operating Partnership hereby appoints appoint the Manager to manage the investments and day-to-day operations of the Company Trust and its the Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of DirectorsTrustees. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for except where a specific standard of care is specified, in which case such purposes as set forth in Section 7 hereofspecific standard of care shall apply. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the CompanyTrust and the Subsidiaries, at all times will be subject to the supervision and direction of the Board of Directors Trustees and will have only such functions and authority as the Board of Directors Trustees may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Trust and the Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Trust and the Subsidiaries, including the investments of the Trust and the Subsidiaries and their financing, as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the CompanyTrust’s and the Subsidiaries’ consultant with respect to the periodic review of the investmentsInvestment Policies, borrowings and operations which review shall occur no less often than annually, any modifications to which shall be approved by a majority of the Company Independent Trustees, and other policies and recommendations with respect thereto, including, without limitation, thereto for approval by a majority of the Investment Guidelines, in each case subject Independent Trustees;
(ii) serving as the Trust’s and the Subsidiaries’ consultant with respect to the approval identification, investigation, evaluation, analysis, underwriting, selection, purchase, origination, negotiation, structuring, monitoring and disposition of the Board of DirectorsTrust’s and the Subsidiaries’ investments;
(iii) serving as the CompanyTrust’s consultant with respect to and the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s Subsidiaries’ consultant with respect to decisions regarding any financings, securitizations and hedging activities or borrowings undertaken by the Company Trust or its Subsidiariesany Subsidiary, including (1) assisting the Company Trust or any Subsidiary in developing criteria for debt and equity financing that is specifically tailored to the CompanyTrust’s or such Subsidiary’s investment objectives, and (2) advising the Company Trust and the Subsidiaries with respect to obtaining appropriate short-term financing arrangements for its their investments and pursuing a particular arrangement for each individual investment, if necessary, and (3) advising the Trust and the Subsidiaries with respect to pursuing and structuring long-term financing alternatives for their investments, in each case consistent with the Investment Policies;
(iv) serving as the Trust’s and the Subsidiaries’ consultant with respect to arranging for the issuance of mortgage-backed securities from pools of mortgage loans or mortgage-backed securities owned by the Trust or any Subsidiary;
(v) advising representing and making recommendations to the Company Trust and the Subsidiaries in connection with respect the purchase and finance and commitment to incentive plans that purchase and finance investments and the Company may establish for the Independent Directorssale and commitment to sell such investments;
(vi) purchasing negotiating and financing investments entering into, on behalf of the CompanyTrust or any Subsidiary, credit finance agreements, repurchase agreements, securitization agreements, agreements relating to borrowings under temporary programs established by the U.S. government, commercial paper, interest rate swap agreements, warehouse facilities and all other agreements and instruments required for the Trust and the Subsidiaries to conduct their business;
(vii) providing advising the Company with portfolio managementTrust and the Subsidiaries on, preparing, negotiating and entering into, on behalf of the Trust or any Subsidiary, applications and agreements relating to programs established by the U.S. government;
(viii) with respect to any prospective investment by the Trust or any Subsidiary and any sale, exchange or other disposition of any investment by the Trust or any Subsidiary, conducting negotiations on behalf of the Trust or such Subsidiary with real estate brokers, sellers and purchasers and their respective agents, representatives and investment bankers and owners of privately and publicly held real estate companies;
(ix) evaluating and recommending to the Trust and the Subsidiaries hedging strategies and engaging in hedging activities on their behalf that are consistent with such strategies, as so modified from time to time, and with the Trust’s qualification as a REIT and with the Investment Policies;
(x) making available to the Trust and the Subsidiaries the Manager’s knowledge and experience with respect to mortgage loans, mortgage-related securities, real estate, real estate securities, other real estate-related assets and non-real estate-related assets and real estate operating companies;
(xi) investing and re-investing any funds of the Trust and the Subsidiaries (including in short-term investments) and advising the Trust and the Subsidiaries as to its capital structure and capital-raising activities;
(xii) monitoring the operating performance of the Trust’s and the Subsidiaries’ investments and providing periodic reports with respect thereto to the Board of Trustees, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xiii) engaging and supervising, on behalf of the Company Trust or any Subsidiary, and at the Company’s expenseexpense of the Operating Partnership (except to the extent determined by the Operating Partnership, in its sole discretion, to be the expense of a Subsidiary other than the Operating Partnership), independent contractors that provide real estate, investment banking, mortgage brokerage, securities brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting, transfer agent, registrar registrar, leasing, due diligence and such other services as may be required relating to the Company’s operations or of the Trust and the Subsidiaries, including their investments (or potential investments);
(ixxiv) coordinating and managing operations of any joint venture or co-investment interests held by the Trust or any Subsidiary and conducting all matters with the joint venture or co-investment partners;
(xv) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyTrust and the Subsidiaries;
(xxvi) performing and supervising the performance of administrative functions necessary in the management of the Company Trust and the Subsidiaries as may be agreed upon by the Manager and the Board of DirectorsTrustees, including, without limitation, the services in respect of any of the equity incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the CompanyTrust’s or any Subsidiary’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xixvii) furnishing reports and statistical and economic research to the Trust and the Subsidiaries regarding their activities and services performed for the Trust and the Subsidiaries by the Manager;
(xviii) counseling the Trust and the Subsidiaries in connection with policy decisions to be made by the Board of Trustees;
(xix) communicating on behalf of the Company Trust or any Subsidiary with the holders of any equity or debt securities of the Company Trust or such Subsidiary as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixx) counseling the Trust and the Subsidiaries regarding the maintenance of their exclusions and, if applicable, exemptions from status as an investment company under the Investment Company in connection Act, monitoring compliance with policy decisions the requirements for maintaining such exclusions and exemptions and using commercially reasonable efforts to be made by cause the Board of DirectorsTrust and the Subsidiaries to maintain their exclusions and exemptions from such status;
(xiiixxi) evaluating assisting the Trust and recommending the Subsidiaries in complying with all regulatory requirements applicable to them in respect of their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and all reports and documents, if any, required under the Company hedging strategies Exchange Act, the Securities Act and engaging in hedging activities on behalf of by the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment GuidelinesNYSE;
(xivxxii) counseling the Company Trust regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations Regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxxiii) causing the Company Trust and the Subsidiaries to retain qualified accountants and legal counsel, as applicable, to (i1) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii2) conduct quarterly compliance reviews with respect thereto;
(xxxxiv) taking all necessary actions to enable the Trust and any Subsidiary to make required tax filings and reports, including soliciting Shareholders or interest holders in any such Subsidiary for required information to the extent necessary under the Code and Treasury Regulations promulgated thereunder applicable to REITs;
(xxv) causing the Company Trust and the Subsidiaries to qualify to do business in all jurisdictions in which such qualification is required or advisable and to obtain and maintain all appropriate licenses;
(xxixxvi) assisting using commercially reasonable efforts to cause the Company in complying Trust and the Subsidiaries to comply with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Actlaws;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxvii) handling and resolving on the Trust’s or any Subsidiary’s behalf all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Trust or such Subsidiary may be involved or to which the Company Trust or such Subsidiary may be subject arising out of the Company’s its day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board of Trustees;
(xxivxxviii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of Trust’s and the CompanySubsidiaries’ business;
(xxvxxix) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Trust and the Subsidiaries to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors Trustees from time to time;; and
(xxvixxx) performing such other services as may be required from time to time for the management and other activities relating to the assets operations, including investments, of the Company Trust and the Subsidiaries as the Board of Directors shall Trustees reasonably request requests or the Manager shall deem deems appropriate under the particular circumstances. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Trust and the Subsidiaries with respect to their investments. Such services will include, but not be limited to, consulting with the Trust and the Subsidiaries on the purchase and sale of, and other investment opportunities in connection with, the Trust’s and the Subsidiaries’ portfolio of assets; and
(xxvii) using commercially reasonable efforts the collection of information and the submission of reports pertaining to cause the Company Trust’s and the Subsidiaries’ assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Trust’s and the Subsidiaries’ portfolio of assets; acting as liaison between the Trust and the Subsidiaries and banking, mortgage banking, investment banking and other parties with respect to comply with all applicable lawsthe purchase, financing and disposition of assets; and other customary functions related to portfolio management.
(c) For the period and on the terms and conditions set forth in this Agreement, each of the Trust and the Operating Partnership hereby constitutes, appoints and authorizes the Manager as its true and lawful agent and attorney-in-fact and as the true and lawful agent and attorney-in-fact of any other Subsidiary, in its name, place and stead, to negotiate, execute, deliver and enter into such credit agreements, repurchase agreements, securitization agreements, agreements relating to borrowings under temporary programs established by the U.S. government, commercial paper, interest rate swap agreements, warehouse facilities, brokerage agreements, custodial agreements and such other agreements, instruments and authorizations on their behalf, on such terms and conditions as the Manager, acting in its sole and absolute discretion, deems necessary or appropriate. This power of attorney is deemed to be coupled with an interest.
(d) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf of the Trust and/or one or more of the Subsidiaries, and at the sole cost and expense of the Operating Partnership (except to the extent determined by the Operating Partnership, in its sole discretion, to be the expense of a Subsidiary other than the Operating Partnership), to provide property management, asset management, securitization, leasing, development and/or other services to the Trust and the Subsidiaries (including, without limitation, Portfolio Management Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Trust and the Subsidiaries; provided, that (i) any agreements entered into with Affiliates of the Manager or any Manager Related Party shall be (A) on terms no more favorable to such Affiliates than would be obtained from a third party on an arm’s-length basis and (B) approved in advance by a majority of the Independent Trustees, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Trust’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to all agreements or other arrangements with other parties, the Manager shall comply with the requirements of the Trust’s Related Party Transactions Policy.
(e) To the extent that the Manager deems necessary or advisable, the Manager may, from time to time, propose to retain one or more additional entities for the provision of sub-advisory services to the Manager in order to enable the Manager to provide the services to the Trust and the Subsidiaries specified by this Agreement; provided, that any such agreement (1) shall be on terms and conditions substantially identical to the terms and conditions of this Agreement or otherwise not adverse to the Trust and the Subsidiaries, (2) shall not result in an increased Base Management Fee, Incentive Fee or expenses payable hereunder and (3) shall be approved by a majority of the Independent Trustees.
(f) The Manager may retain, for and on behalfbehalf of the Trust and/or one or more of the Subsidiaries, and at the sole cost and expense, expense of the CompanyOperating Partnership (except to the extent determined by the Operating Partnership, in its sole discretion, to be the expense of a Subsidiary other than the Operating Partnership), such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel counsel, appraisers, insurers, brokers, transfer agents, registrars, financial printers, developers, investment banks, financial advisors, internal audit service providers, due diligence firms, underwriting review firms, banks and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action thatlenders, in its sole judgment made in good faithsurveyors, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.eng
Appears in 2 contracts
Samples: Management Agreement (PennyMac Mortgage Investment Trust), Management Agreement (PennyMac Financial Services, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of DirectorsBoard. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the CompanyCompany and its Subsidiaries, at all times will be subject to the supervision and direction of the Board Board, will act in a manner that is compliant with the provisions of Directors the Governing Instruments of the Company and each of its Subsidiaries and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, managing the functions Company’s business affairs in conformity with the Investment Guidelines and authority identified herein other policies that are approved and delegated adopted by the Board. The Company and the Manager hereby acknowledge the recommendation by the Manager and the approval by the Board, of the Investment Guidelines, including, but not limited to the Company’s investment strategy with respect to the Target Assets. The Company and the Manager hereby. hereby acknowledge and agree that, during the term of this Agreement, any proposed changes to the Company’s investment strategy that would modify or expand the Target Assets may only be recommended by the Manager and shall require the approval of the Board and the Manager.
(c) The Manager will be responsible for the day-to-day operations of the Company (which, for purposes of the Manager’s responsibilities in this Agreement, includes its Subsidiaries) and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Manager Investment Committee, which will have the following responsibilities: (A) proposing modifications to the Investment Guidelines to the Board of DirectorsBoard, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly quarterly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly quarterly basis, and (ED) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.;
(ii) serving as the Company’s consultant with respect to the periodic review of the Investment Guidelines and other parameters for the Company’s investments, borrowings financing activities and operations operations, any modification to which will be approved by a majority of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsour independent directors;
(iii) serving as investigating, analyzing and selecting possible investment opportunities and acquiring, financing, retaining, selling, restructuring or disposing of investments consistent with the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsInvestment Guidelines;
(iv) with respect to prospective purchases, sales or exchanges of investments, conducting negotiations on the Company’s behalf with sellers, purchasers and brokers and, if applicable, their respective agents and representatives;
(v) with respect to prospective lease transactions, conducting negotiations on the Company’s behalf with current and prospective tenants;
(vi) analyzing prospective opportunities to reposition properties for alternative uses or make capital improvements or in order to retain existing tenants or attract new tenants at the Real Estate Assets;
(vii) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities of its financings or borrowings undertaken by the Company or its Subsidiariesit, including (1) sourcing financing alternatives, (2) assisting the Company it in developing criteria for debt and equity financing that is specifically tailored to the Company’s its investment objectives, and (23) advising the Company it with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio managementReal Estate Assets;
(viii) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurancemortgage brokerage, legalother financial services, accountingdue diligence services, transfer agentunderwriting review services, registrar legal and such accounting services, and all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations or investments (or potential investments);
(ix) coordinating and managing operations of any Joint Venture or co-investment interests held by the Company and conducting all matters with the Joint Venture or co-investment partners;
(x) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxi) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xixii) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixiii) counseling the Company in connection with policy decisions to be made by our the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment GuidelinesBoard;
(xiv) counseling the Company regarding the maintenance of its the Company’s qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixvi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of DirectorsBoard, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing reinvesting any monies moneys and securities of the Company (including investing in short-term investments pending investment in other investments, payment of fees, costs and expenses, or payments of dividends or distributions to the Company’s stockholders and partners of the Companypartners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries subsidiaries, and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxix) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act, or by NASDAQ;
(xxiixxi) assisting the Company in taking all necessary actions action to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under required by the provisions of the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of Real Estate Assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) providing the Company with portfolio management;
(xxvi) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxvii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Company’s properties and business, as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxviii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms Persons referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s applicable Governing Instruments. If the Manager is ordered to take any action by the Board of DirectorsBoard, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company (including the Board of DirectorsBoard) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNASDAQ’s Rules Manual, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If .
(g) As frequently as the Manager is not able to provide a servicemay deem reasonably necessary or advisable, or in at the reasonable judgment direction of the Manager it is not prudent to provide a serviceBoard, without the approval of the Board of Directors, as applicable, then the Manager shall prepare, or, at the sole cost and expense of the Company, cause to be excused from providing such service prepared, with respect to any reports and other information relating to any proposed or consummated investment as may be reasonably requested by the Company.
(i) The Manager shall prepare, or, at the sole cost and expense of the Company, cause to be prepared, all reports, financial or otherwise, with respect to the Company reasonably required by the Board in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall not prepare, or, at the sole cost and expense of the Company, cause to be in breach prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of this Agreementthe Company’s books of account by a nationally recognized independent accounting firm.
(ii) until The Manager shall prepare, or, at the applicable approval has been obtainedsole cost and expense to the Company, cause to be prepared, regular reports for the Board to enable the Board to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Investment Guidelines and policies approved by the Board.
Appears in 2 contracts
Samples: Management Agreement (American Realty Capital Properties, Inc.), Management Agreement (American Realty Capital Properties, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s 's investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s 's investment portfolio and the Company’s 's hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s 's consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s 's consultant with respect to the selection, purchase, monitoring and disposition of the Company’s 's investments;
(iv) serving as the Company’s 's consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s 's investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(viivi) providing the Company with portfolio management;
(viiivii) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s 's operations or investments (or potential investments);
(ixviii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification and maintenance of the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding its qualification and the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixv) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixvi) monitoring the operating performance of the Company’s 's investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct or by the NYSE or other stock exchange requirements as applicable;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s 's day-to-day operations;
(xxivxxiii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s 's sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company's or any Subsidiary’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s 's Governing Instruments, the Conduct Policies or other Company compliance or governance policies or procedures. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s 's judgment that such action would adversely affect such the qualification of the Company as a REIT or the Company’s or any Subsidiary’s status as an entity excluded from investment company status under the Investment Company Act or violate any such law, rule or regulation or the Company’s Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, Directors or the Company’s 's stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaqthe NYSE, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (Orchid Island Capital, Inc.), Management Agreement (Bimini Capital Management, Inc.)
Appointment and Duties of the Manager. (a) The Company Partnership hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Managed Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by including providing the Company for such purposes as set forth in Section 7 hereof. services of the Chairman, Chief Executive Officer, President and Chief Operating Officer of Steel Partners Holdings GP Inc. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be delegated to or provided by third parties, whether or not affiliated with the Manager (provided that no such delegation by the Manager shall relieve the Manager of responsibility therefor), and the Partnership, at the direction of the Manager, will enter into agreements directly with such third parties to whom such duties may be delegated, as the Manager deems appropriate.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyManaged Entities, at all times will be subject to the supervision and direction of the Board of Directors General Partner and will have only such functions and authority as the Board of Directors General Partner may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager and its key senior executives will be responsible for the day-to-day operations of the Company Managed Entities and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Managed Entities as may be appropriateappropriate for a Chief Executive Offer and President to perform, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the CompanyPartnership’s consultant with respect to the periodic review of the investments, borrowings Business and operations of the Company Managed Entities and any modifications to its purpose as directed by the General Partner and consented to by the Manager and other policies established by the General Partner and recommendations with respect theretoapproved by the Manager;
(ii) investigation, includinganalysis, without limitation, selection and implementation of business opportunities for the Investment Guidelines, in each case subject to the approval of the Board of DirectorsManaged Entities;
(iii) serving as the Company’s consultant with respect to prospective business opportunities by the selectionManaged Entities, purchaseconducting negotiations with sellers and purchasers and their respective agents and representatives and having discretion to determine if and when to proceed with any such business opportunities, monitoring and disposition including entering into, on behalf of the Company’s investmentsManaged Entities, any agreements with other Persons with respect to any such business opportunities;
(iv) serving as entering into any agreements on behalf of the Company’s consultant Managed Entities in connection with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or performance of its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsobligations under this Agreement;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company Managed Entities and at the Company’s Managed Entities’ expense, independent contractors that which provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agentcustodial, registrar administration and other services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Business;
(ixvi) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyManaged Entities;
(xvii) supervising the day-to-day operations of the Managed Entities and performing and supervising the performance of such other administrative functions necessary in the management of the Company Managed Entities as may be agreed upon by the Manager General Partner and the Board of DirectorsManager, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s Managed Entities’ debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company Managed Entities in connection with policy decisions to be made by the Board General Partner or the relevant management team of Directorsa Managed Entity;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the Company’s investments Managed Entities and providing periodic reports with respect thereto to the Board General Partner or the relevant management team of Directorsa Managed Entity, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiix) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Managed Entities may be involved or to which the Company Managed Entities may be subject arising out of the Company’s day-to-day operationsoperations of the Managed Entities;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxi) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Managed Entities to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;customary; and
(xxvixii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Managed Entities as the Board General Partner or the relevant management team of Directors a Managed Entity shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, or direct the Managed Entities to enter into such agreements directly, for the purpose of engaging one or more parties for and on behalf of the Managed Entities to provide management and/or other services to the Managed Entities pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have businesses similar in type to the Managed Entities; provided that with respect to any agreements entered into with Affiliates of the Manager pursuant to which such Affiliates shall perform any obligations of the Manager under this Agreement and in respect of which the Manager receives the Management Fee, the Manager shall provide prompt notice of the terms of such agreement or arrangement to the Independent Directors, and further provided that any arrangement entered into directly by the Managed Entities with such other party to perform any obligations of the Manager under this Agreement shall result in a reduction of the Management Fee payable under this Agreement in the amount of the fees charged under such direct arrangement.
(d) As provided in SECTION 2(b)(v), the Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyPartnership or the Managed Entities, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyManaged Entities and the Business. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Partnership or the Managed Entities shall pay or reimburse the Manager or its Affiliates performing such services for the cost and expenses thereof; provided that such costs and reimbursements as to Affiliates of the Manager are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the General Partner, the Manager shall, at the sole cost and expense of the Partnership or the Managed Entities, prepare, or cause to be prepared, any reports and other information with respect to the Business as may be reasonably requested by the General Partner.
(f) The Manager shall prepare regular reports for the General Partner to enable the General Partner to review the Business and compliance with the guidelines and policies approved by the General Partner.
(g) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not provide advice, and will have no authority to make the actual decisions, with respect to the acquisition or disposition of securities, which shall be vested in the General Partner.
(h) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Managed Entities in excess of that contained in any applicable Partnership Account or otherwise made available by the Managed Entities to be expended by the Manager hereunder or any other party with respect to the Managed Entities. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Partnership under SECTION 16(a) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) Managers, members, partners, officers, employees or agents may serve as directors, officers, employees, agents, nominees or signatories for the Managed Entities, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the General Partner pursuant to the Partnership’s Governing Instruments. When executing documents or otherwise acting in such capacities for a Managed Entity, such persons shall use their respective titles in the Partnership or such other Managed Entity, to the extent that they are an officer of the Partnership or such other Managed Entity or shall use their respective titles in the Manager.
(j) The General Partner shall pass any and all necessary resolutions to provide for the delegation of its duties to the Manager under this Agreement (and to facilitate the delegation of duties to the Manager in respect of the other Managed Entities), and to permit such delegation to be approved or evidenced by acts of the Board of Directors, or by any certificate duly signed by any officer of the General Partner (or, as applicable, the officers or authorized persons of the other Managed Entities), to verify or confirm the authority of the Manager or any of its members, partners, officers, employees or agents authority to enter into agreements on behalf of and bind the Partnership (and each Managed Entity).
(k) In performing its duties under this Section SECTION 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Managed Entities’ sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (Steel Partners Holdings L.P.), Management Agreement (Steel Partners Holdings L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein. During the term of this Agreement, provided that funds are made available by the Company for such purposes Manager shall provide, or cause another Person or Persons to provide, the services as set forth in Section 7 hereof. The appointment this Agreement to the Company, provided that, in the event the Manager causes another Person or Persons to provide any of the services required to be provided by the Manager hereunder, the Manager shall be exclusive remain responsible for the provision of such services pursuant to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xii) performing investigating, analyzing and supervising proposing possible acquisition and investment opportunities;
(iii) evaluating and recommending to the performance Board of administrative functions necessary in the management Directors and officers of the Company as may be agreed upon by the Manager possible new markets and the Board of Directors, including, without limitation, the services engaging in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment those new markets on behalf of the Company’s debts and obligations and maintenance of appropriate information technology services , consistent with such strategies, as so modified from time to perform such administrative functionstime;
(xiiv) expanding and managing the Company markets;
(v) negotiating agreements on the Company’s behalf;
(vi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiivii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xviviii) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the Company’s investments Company and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiix) investing and re-investing any monies and securities at the direction of audit committee of the Company (including in short-term investmentsBoard of Directors, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxi) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixii) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxiv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixv) advising the Company with respect to obtaining financing for its operations;
(xvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and;
(xxviixvii) obtain and maintain, for and on behalf of the Company, insurance coverages with respect to the Company and its business and operations, including errors and omissions insurance with respect to the services provided by the Manager pursuant to this Agreement, in each case in the types and minimum limits as the Manager determines to be appropriate and as is consistent with standard industry practice;
(xviii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(xix) handling standard back office functions for the Company such as billing clients, collecting receivables, customer service, accounts payables, vendor agreements and the like; and
(xx) either directly or through another Person, entering into such appropriate vendor and financing arrangements for the benefit of the Company including accounts receivable financing arrangements such as factoring agreements.
(c) Subject to Section 2(a), the Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide services to the Company pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that are similar in type to the Company; provided, that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and shall include such customary warranties and guarantees as may be reasonably required with respect to the goods and services so furnished.
(d) Subject to Section 2(a), the Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties to provide the Management services provided for herein; provided, that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and shall include such customary warranties and guarantees as may be reasonably required with respect to the goods and services so furnished.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) If the Manager uses or licenses intellectual property owned by Third Parties in the performance of services under this Agreement, the Manager shall obtain and maintain any such licenses and authorizations necessary to authorize its use of such intellectual property in connection with such services.
(h) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (Us Wireless Online Inc), Management Agreement (Sutioc Enterprises, Inc)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage implement the investments investment strategy set forth in, and day-to-day operations of subject to the Company and its Subsidiariesconditions of, the Guidelines, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times times, will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations implementation of the Company Guidelines and the making of Investments and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company such activities as may be appropriate, which may includeincluding, without limitation, the following:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review criteria and parameters for Investments, borrowings relating to Investments and operations, any modifications to which criteria and parameters shall be approved by a majority of the investmentsIndependent Directors (such criteria and parameters are attached hereto as Exhibit A, borrowings and operations of as the Company same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of approved by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities in accordance with the Guidelines;
(iii) serving as negotiating on behalf of the Company’s consultant with respect to Company for the selection, purchase, monitoring and disposition sale of a portion of the Company’s investmentsexisting assets and the reinvestment of the proceeds therefrom in the purchase or other acquisition of Investments, as contemplated by the Guidelines;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken prospective Investments by the Company or its SubsidiariesCompany, including (1) assisting the Company in developing criteria for debt conducting negotiations with sellers and equity financing that is specifically tailored to the Company’s purchasers and their respective agents, representatives and investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsbankers;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments, provided that the prior approval of the Independent Directors shall be required for any individual engagement involving fees payable by the Company in excess of $25,000;
(ixvi) providing executive and administrative personnelnegotiating on behalf of the Company for the sale, office space and office services required in rendering services to the Companyexchange or other disposition of any Investments;
(xvii) performing implementing the investment strategy set forth in the Guidelines and supervising the administration of the day-to-day operations of the Company relating to Investments and the implementation of the Guidelines and supervising the performance of related administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company in connection with policy decisions to be made by the Board of DirectorsDirectors relating to Investments;
(xiiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivx) counseling the Company regarding the maintenance of its qualification as a REIT and assisting in developing appropriate accounting procedures, compliance procedures and testing systems relating to, and monitoring compliance with (including participating in quarterly compliance reviews) with, the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxi) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvixii) furnishing reports assisting the Company in developing criteria for asset purchases that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or its Subsidiariesexperience with respect to trust preferred securities, if anyLeveraged Loans, by the Managermortgage loans (including on a portfolio basis), mortgage-backed securities and other assets, CDOs, CLOs and other securitizations;
(xviixiii) selecting brokers and dealers to effect trading on behalf of the Company, including, without limitation, Xxxxx Bros. and its Affiliates, provided that any compensation payable to Xxxxx Bros. or its Affiliates is not greater than the compensation which would generally be payable to outside brokers and dealers engaged to perform similar services pursuant to arm’s-length arrangements;
(xiv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports reports, no less than monthly, with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxv) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is Investments are made, if required by applicable law, and to obtain and maintain all appropriate such licenses;
(xxixvi) subject to Section 2(e), assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixvii) taking all subject to Section 2(e), providing such information and services, and access to the Manager’s personnel and systems, as may be reasonably requested by the Company so as to enable the appropriate officers of the Company to make the certifications required under the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the Securities and Exchange Commission thereunder;
(xviii) subject to Section 2(e), providing necessary actions information to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for those that may be required information to by the extent necessary under provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxix) using commercially reasonable efforts to cause expenses incurred by or the Manager on behalf of the Company or incurred by the Company at the direction of the Manager to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixx) advising the Company with respect to obtaining appropriate warehouse or other financings for its Investments;
(xxi) advising the Company with respect to and structuring long-term financing vehicles for the Company’s Investments, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxii) performing such other services as may be required from time to time for the management and other activities relating to the Company and its assets of the Company as the Board of Directors shall reasonably request or the Manager or the Board of Directors shall deem appropriate under the particular circumstances; and
(xxviixxiii) using commercially reasonable efforts to cause the Company to comply with all applicable lawslaws in making the Investments and conducting business pursuant to the Guidelines. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company’s Board of Directors with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports to the Company’s Board of Directors pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating services agreements; acting as a liaison between the servicer provider and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may retainenter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on its behalf, and and, except as otherwise agreed, at the sole cost and expenseexpense of the Company to provide credit analysis, risk management services, asset management, and/or other services (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the Investments; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such Affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same are not specifically contemplated by this Agreement or the Shared Services Agreement, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors). Notwithstanding the foregoing, the Shared Services Agreement shall not be subject to further review or approval by the Independent Directors prior to the expiration of its initial term, unless such agreement shall be amended, in which case such amendment shall be subject to the foregoing limitations on agreements between the Manager and its Affiliates.
(d) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such services Investment as may be reasonably requested by the Company.
(e) The Manager shall prepare regular reports, at least monthly, for the Board of Directors to enable the Board of Directors to review the Company’s Investments, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(f) Notwithstanding anything contained in this Agreement to the contrary, although the Manager will provide the Company with advice and counseling with regard to regulatory requirements applicable to the Company relating to the Investments, the Company and its Board of Directors and internal management team shall remain solely responsible for the preparation of all financial statements required under applicable regulations and the preparation and filing of (i) all reports and documents required under the Exchange Act and the rules of the persons NYSE, and firms referred (ii) all tax returns and required tax filings. The Manager shall use its commercially reasonable efforts to provide the Board of Directors and the Company’s internal management team with the information relating to the Investments needed for the preparation of such reports and filings in Section 7(b) hereof as a timely fashion. Furthermore, the Company shall retain sole responsibility for the operations of the Company that shall not be managed by the Manager deems necessary hereunder, including, without limitation, the Company’s payroll; office space; maintenance of furniture, fixtures and equipment; investor relations; accounting; relations with regulators and the NYSE and compliance with the Company’s obligations under the Merger Agreement.
(g) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or advisable omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the management and operations Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Company. Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(h) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Interim Management Agreement, Interim Management Agreement (Sunset Financial Resources Inc)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third partiesparties or affiliates, including pursuant to the FIG Management Agreement.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estateservices relating to the Investments, including, but not limited to, investment banking, legal advisory, tax advisory, accounting advisory, securities brokerage, insurancereal estate advisory and brokerage, legal, accounting, transfer agent, registrar and such other financial and consulting services as may be required relating the Manager determines from time to the Company’s operations or investments (or potential investments)time is advisable;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time ;
(xii) assisting the Company in developing criteria that are specifically tailored to time, with the Company’s qualification as a REIT investment objectives and making available to the Company its knowledge and experience with respect to its target assets;
(xiii) representing and making recommendations to the Company in connection with the Investment Guidelinespurchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such assets;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixv) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvi) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxvii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixviii) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxiixix) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITsprovisions of the Code;
(xxiiixx) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxi) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiii) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more asset managers for and on behalf, and at the sole cost and expense, of the Company to provide operations management, asset management, personnel management, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided, that (i) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (ii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. Commencing from the Listing, the Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, performance and compliance with policies approved by the Board of Directors.
(h) [Reserved.]
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Management Agreement (New Media Investment Group Inc.), Management Agreement (New Media Investment Group Inc.)
Appointment and Duties of the Manager. 5
(a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its SubsidiariesCompany, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms and conditions of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company (and all subsidiaries and joint ventures of the Company), at all times will be subject to the supervision supervision, direction and direction management of the Board of Directors Trustees and will have only such functions and authority as the Board of Directors Company may delegate to it. The Company hereby reserves to a majority of the Board of Trustees (three (3) of whom must be independent) the following powers:
(i) the authority to determine or change the strategic direction of the Company at any time and in the sole discretion of the Board of Trustees; (ii) the approval of prospective Investments, includingto the extent required by the Investment Manual or the Conflicts of Interest Policy, which may not be amended in a manner that is detrimental to the Company without limitationapproval by a majority of the Independent Trustees, it being understood that the Board of Trustees shall have the power to reject prospective Investments, even if such Investments comply with the criteria outlined in the Investment Manual; (iii) the approval or disapproval of prospective dispositions of Investments, to the extent required by the Investment Manual, as it may be amended by the Board of Trustees from time to time; (iv) the approval of the terms of loan documents for the Company’s financings; (v) the approval of the Company’s annual budget (which shall address in reasonable detail, among other matters, financing plans and capital planning, it being understood that the Manager will submit such budget in advance to the Board of Trustees for review and approval, and will provide quarterly updates of performance against the annual budget to the Board of Trustees; (vi) the approval of the retention of the Company’s registered public accountants; (vii) the approval of any material transaction between the Company and the Manager and its Affiliates, other than transactions pursuant to this Agreement, the Property Management Agreement and other transactions in effect as of the Distribution Date; (viii) the issuance of equity or debt securities by the Company; (ix) the grant of equity incentive awards by the Company; (x) the entry into joint ventures by the Company or its Subsidiaries; (xi) the approval of entry into any transaction that would constitute a Change in Control; and (xii) such other matters as may be determined by the Board of Trustees from time to 6
(c) The Company, subject to Section 2(b), hereby delegates the following functions and authority identified herein and delegated to the Manager herebyManager. The Subject to the Section 2(b), the Manager will be responsible for managing the assets and the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation: (i) sourcing, the Investment Guidelinesinvestigating and evaluating prospective Investments and dispositions of Investments, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT Manual, and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports making recommendations with respect thereto to the Board of DirectorsTrustees, where applicable; (ii) subject to and consistent with the Investment Manual, conducting negotiations with brokers, sellers and purchasers, and their respective agents and representatives, investment bankers and owners of privately and publicly held real estate or related assets, regarding the purchase, sale, exchange or other disposition of any Investments; (iii) managing and monitoring the operating performance of Investments and providing periodic reports to the Board of Trustees, including comparative information with respect to such operating performance and budgeted or projected operating results;
; (xviiiiv) investing assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and re-investing making available to the Company the Manager’s knowledge and experience with respect to its target assets; (v) engaging and supervising independent contractors that provide services relating to the Company or the Investments, including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, accounting advisory, securities brokerage, property management/operations, property condition, real estate and leasing advisory and brokerage, and other financial and consulting services reasonably necessary for Manager to perform its duties hereunder (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent Trustees and any monies and securities committee of the Company Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors); (including in short-term investmentsvi) subject to any required approval of the Board of Trustees, payment of feesnegotiating, costs and expenses, or payments of dividends or distributions to stockholders and partners on behalf of the Company, the terms of loan documents for the Company’s financings; (vii) enforcing, monitoring and advising managing compliance with loan documents to which the Company is a party on behalf of the Company; (viii) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners; (ix) coordinating and supervising all property managers, tenant operators, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments; (x) providing executive and administrative personnel, office space and office services 7 required in rendering services to the Company; (xi) administering bookkeeping and accounting functions as are required for the management and operation of the Company, contracting for audits and preparing or causing to be prepared such periodic reports and filings as may be required by any governmental authority in connection with the ordinary conduct of the Company’s business, and otherwise advising and assisting the Company with its capital structure compliance with applicable legal and capital-raising activities;
regulatory requirements, including, without limitation, periodic reports, returns or statements required under the Exchange Act, the Code and any regulations or rulings thereunder, the securities and tax statutes of any jurisdiction in which the Company is obligated to file such reports, or the rules and regulations promulgated under any of the foregoing; (xixxii) advising and assisting in the preparation and filing of all offering documents, registration statements, prospectuses, proxies, and other forms or documents filed with the SEC pursuant to the Securities Act or any state securities regulators (it being understood that the Company shall be responsible for the content of any and all of its offering documents, SEC filings or state regulatory filings, and that Manager shall not be held liable for any costs or liabilities arising out of any misstatements or omissions in the Company’s offering documents, SEC filings, state regulatory filings or other filings referred to in this subparagraph, whether or not material (except by reason of acts constituting bad faith, willful misconduct, gross negligence or reckless disregard of Manager’s duties under this Agreement); (xiii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent Trustees and any Committee of the Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors); (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixiv) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders shareholders for required information to the extent necessary under required by the provisions of the Code applicable to REITs; (xv) counseling the Company regarding the maintenance of its status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations applicable to REITs;
Regulations thereunder; (xxiiixvi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which counseling the Company may be involved or to which regarding the maintenance of its exemption from the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from the Investment Company Act; (xvii) counseling the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company in connection with policy decisions to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set made by the Board of Directors from time Trustees; (xviii) evaluating and recommending to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request Trustees modifications to any hedging strategies in effect on the date hereof and engaging in hedging activities; (xix) communicating with the Company’s investors and analysts as required to satisfy reporting or other requirements of any governing body or exchange on which the Company’s 8
(d) Subject to Section 2(b) above and the Conflicts of Interest Policy, the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply may enter into agreements with all applicable lawsother parties in connection with its duties hereunder.
(ce) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with 9
(f) As frequently as the management Manager may deem necessary or advisable, or at the direction of the Board of Trustees, the Manager shall, at the sole cost and operations expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser; (ii) reports and information on the Company’s operations and asset performance; and (iii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company required by the Board of Trustees in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, as well as all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Trustees to enable the Board of Trustees to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Investment Manual and any policies approved by the Board of Trustees.
(i) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 12(b) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 2 contracts
Samples: Asset Management Agreement (Spirit Realty, L.P.), Asset Management Agreement (Spirit MTA REIT)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company independent members of the Board of Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estateestate brokerage, investment bankingbanking and leasing services, mortgage brokerage, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company’s expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiii) counseling the Company regarding the maintenance of its status as a real estate investment trust and monitoring compliance with the various real estate investment trust qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities and other real estate-related assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of mortgage loans (including on a portfolio basis), real estate, real estate securities and other real estate-related assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms’-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the independent members of the Board of Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company’s operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar registrar, settlement, clearing, custodian and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research other data to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating resultsperformance;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company, Operating Company and each of the other Subsidiaries hereby appoints appoint the Manager to manage the investments assets and the day-to-day operations of the Company, Operating Company and its Subsidiaries, the other Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for except where a higher standard of care is specified in this Agreement, in which case such purposes as set forth in Section 7 hereofhigher standard of care shall apply. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the CompanyCompany and the Subsidiaries, at all times will be subject to the supervision and direction of the Board of Directors Directors, and the Manager will have only such functions and authority as the Board of Directors Company may delegate to it, including, without limitation, including the functions and authority identified herein and delegated to the Manager hereby. The Without limiting the power and authority granted to the Manager pursuant to Section 2(c), the Manager will be responsible for the day-to-day operations of the Company and the Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company and the Subsidiaries as may be appropriate, which may include, without limitationincluding:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s and the Subsidiaries’ consultant with respect to the periodic review of the investmentsinvestment guidelines and other parameters for the Investments, borrowings financing activities and operations operations, which review shall occur no less often than annually, any modification to which shall be approved by a majority of the Company Independent Directors (such guidelines as initially approved and other policies attached hereto as Exhibit A, as the same may be modified, supplemented or waived with such approval, the “Investment Guidelines”);
(ii) identifying, investigating, analyzing and recommendations selecting possible investment opportunities and acquiring, negotiating, monitoring, financing, retaining, selling, restructuring or disposing of Investments consistent in all material respects with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selectionprospective purchases, purchasesales or exchanges of Investments, monitoring and disposition conducting negotiations on behalf of the Company’s investments;Company and the Subsidiaries with sellers, purchasers, trustees, primary dealers, custodians and brokers and, if applicable, their respective agents and representatives; Table of Contents
(iv) serving as negotiating and entering into, on behalf of the Company’s consultant with respect Company and the Subsidiaries, bank credit facilities, repurchase agreements, interest rate swap agreements, agreements relating to decisions regarding any financings, hedging activities or borrowings undertaken under programs established by the Company or its Subsidiaries, including (1) assisting U.S. Government and/or any agencies thereunder and other agreements and instruments required for the Company in developing criteria for debt and equity financing that is specifically tailored the Subsidiaries to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsconduct their business;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and the Subsidiaries and at the Company’s expenseexpense of Operating Company or its designee(s), independent contractors that provide real estate, investment banking, securities brokerage, insurancemortgage brokerage, legalother financial services, accountingdue diligence services, transfer agentunderwriting review services, registrar legal and such accounting services, and all other services (including transfer agent and registrar services) as may be required relating to the Company’s and the Subsidiaries’ operations or investments Investments (or potential investments);
(ixvi) advising on, preparing, negotiating and entering into, on behalf of the Company and the Subsidiaries, applications and agreements relating to programs established by the U.S. Government and/or any agencies thereunder;
(vii) coordinating and managing operations of any joint venture or co-investment interests held by the Company and the Subsidiaries and conducting all matters with the joint venture or co-investment partners;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyCompany and the Subsidiaries, including office space for any persons who are employed directly by the Company or its Subsidiaries and who are not simultaneously employed by the Manager or any of its Affiliates;
(xix) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the management of the Company and the Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, including the services in respect of any equity incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations of the Company and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company and the Subsidiaries with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;; Table of Contents
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the CompanyCompany and the Subsidiaries, consistent with such strategies, strategies as so modified from time to time, with while maintaining the Company’s qualification as a REIT and with within the Investment Guidelines;
(xivxiii) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out forth in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify as a REIT for tax purposes;
(xvxiv) counseling the Company and the Subsidiaries regarding the maintenance of its exemption their exemptions from the status as of an investment company required to register under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexemptions and using commercially reasonable efforts to cause them to maintain such exemptions from such status;
(xvixv) furnishing reports and statistical and economic research to the Company and the Subsidiaries regarding the their activities and services performed for the Company or its Subsidiaries, if any, and the Subsidiaries by the ManagerManager and its Affiliates;
(xviixvi) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing reinvesting on behalf of the Company and the Subsidiaries any monies money and securities of the Company and the Subsidiaries (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments expenses and payment of dividends or other distributions to stockholders stockholders, members and partners of the CompanyCompany and the Subsidiaries) and advising the Company and the Subsidiaries as to its their capital structure and capital-raising activities;
capital raising; Table of Contents (xixxviii) causing the Company and the Subsidiaries to retain qualified accountants accountants, tax professionals and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, domestic taxable REIT subsidiaries subsidiaries, and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Master Combination Agreement (NorthStar Real Estate Income II, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein. During the term of this Agreement, provided that funds are made available by the Company for such purposes Manager shall provide, or cause another Person or Persons to provide, the services as set forth in Section 7 hereof. The appointment this Agreement to the Company, provided that, in the event the Manager causes another Person or Persons to provide any of the services required to be provided by the Manager hereunder, the Manager shall be exclusive remain responsible for the provision of such services pursuant to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xii) performing investigating, analyzing and supervising proposing possible acquisition and investment opportunities;
(iii) evaluating and recommending to the performance Board of administrative functions necessary in the management Directors and officers of the Company as may be agreed upon by the Manager hedging strategies and the Board of Directors, including, without limitation, the services engaging in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment hedging activities on behalf of the Company’s debts and obligations and maintenance of appropriate information technology services , consistent with such strategies, as so modified from time to perform such administrative functionstime;
(xiiv) negotiating agreements on the Company’s behalf;
(v) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiivi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvivii) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiviii) monitoring the operating performance of the Company’s investments Company and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiiix) investing and re-investing any monies and securities at the direction of audit committee of the Company (including in short-term investmentsBoard of Directors, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixiv) advising the Company with respect to obtaining financing for its operations;
(xv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances;
(xvi) obtain and maintain, for and on behalf of the Company, insurance coverages with respect to the Company and its business and operations, including errors and omissions insurance with respect to the services provided by the Manager pursuant to this Agreement, in each case in the types and minimum limits as the Manager determines to be appropriate and as is consistent with standard industry practice; and
(xxviixvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) Subject to Section 2(a), the Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide services to the Company pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s- length basis and shall include such customary warranties and guarantees as may be reasonably required with respect to the goods and services so furnished.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(f) If the Manager uses or licenses intellectual property owned by Third Parties in the performance of services under this Agreement, the Manager shall obtain and maintain any such licenses and authorizations necessary to authorize its use of such intellectual property in connection with such services.
(g) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Atlas America Series 27-2006 LP)
Appointment and Duties of the Manager. (a) The Company and the Operating Partnership hereby appoints appoint the Manager to manage the investments assets and the day-to-day operations of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth hereinherein except where a higher standard of care is specified in this Agreement, provided that funds are made available by the Company for in which case such purposes as set forth in Section 7 hereofhigher standard of care shall apply. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Companymanager, will at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager herebyDirectors. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company and its Subsidiaries as may be appropriateappropriate (such services and activities, which may includeand any and all other services contemplated to be performed by the Manager hereunder, collectively, the “Services”), including, without limitation:
(i) forming investigating, selecting and, on behalf of the Company and maintaining its Subsidiaries, engaging and conducting business with and supervising the Investment Committee, which will have performance of such persons as the following responsibilities: (A) proposing the Investment Guidelines Manager deems necessary to the Board proper performance of Directorsits obligations under this Agreement (including consultants, (B) reviewing accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, securities investment advisors, the Company’s investment portfolio registrar and the transfer agent and any and all agents for compliance with any of the Investment Guidelines on a monthly basisforegoing), (C) reviewing including affiliates of the Investment Guidelines adopted Manager and Persons acting in any other capacity deemed by the Board Manager to be necessary or desirable for the performance of Directors on a periodic basis, (D) reviewing the diversification any of the Company’s investment portfolio Services (including entering into contracts on behalf of and in the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision name of the services set forth in this Section 2.Company and its Subsidiaries relating to any of the foregoing);
(ii) serving as consulting with the Company’s consultant with respect to the periodic review of the investments, borrowings officers and operations directors of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by and assisting such parties in the Company or its Subsidiariesformulation and implementation of the Company’s financial policies, including (1) assisting the Company in developing criteria for debt and equity financing that is are specifically tailored to the Company’s and its Subsidiaries’ investment objectives, and, as necessary, furnishing the Board of Directors with advice and (2) advising the Company recommendations with respect to obtaining appropriate the Company’s investment objectives and policies and in connection with any borrowings (or refinancing of borrowings) proposed to be undertaken by the Company or its Subsidiaries;
(iii) (A) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and its Subsidiaries; (B) entering into leases and service contracts for the Company and its investmentsSubsidiaries and (C) managing accounting and other recordkeeping functions for the Company and its Subsidiaries, including assisting the Company in the preparation of its financial statements and reviewing and analyzing the capital and operating budgets and generating an annual budget for the Company;
(iv) coordinating and managing operations of any joint venture or co-investment interests held directly or indirectly by the Company and its Subsidiaries and conducting all matters with the joint venture or co-investment partners;
(v) advising from time to time, or at any time reasonably requested by the Company Board of Directors, making reports to the Board of Directors, on its performances of the Services, including reports with respect to incentive plans that any potential conflicts of interest involving the Company may establish for the Independent DirectorsManager or any of its Affiliates;
(vi) purchasing administering the day-to-day operations and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of such other administrative functions necessary in to the management of the Company and its Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xivii) performing investor relations and stockholder communications for the Company, including communicating on behalf of the Company and its Subsidiaries with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Companyactivities, consistent with such strategies, strategies as so modified from time to time, with while maintaining the Company’s qualification of the Company as a REIT and with the Investment GuidelinesREIT;
(xivx) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out forth in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify as a REIT for tax purposes;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixi) furnishing reports and statistical and economic research to the Company and its Subsidiaries regarding the Manager’s activities and services performed for the Company or its Subsidiaries, if any, by the Managerperformed;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixii) investing and re-investing reinvesting any monies money and securities of the Company and its Subsidiaries (including investing in short-term investments pending investment in other investments, payment of fees, costs and expenses, or payments expenses and payment of dividends or distributions to stockholders and partners of the CompanyCompany and its Subsidiaries) and advising the Company and its Subsidiaries as to its their capital structure and capital-raising activitiescapital raising;
(xixxiii) causing the Company and its Subsidiaries to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs REITs, and specifically, lodging REITs, and, if applicable, domestic taxable REIT subsidiaries subsidiaries, and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxiv) causing assisting the Company to qualify and its Subsidiaries in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixv) assisting the Company and its Subsidiaries in complying with all regulatory requirements applicable to the Company in them with respect of its to their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or Act, the Securities Act;
(xxii) , or by any securities exchange on which the Common Stock may be listed or by assisting the Company and its Subsidiaries in taking all necessary actions action to enable the Company and any Subsidiaries them to make required tax filings and reports, including soliciting stockholders for all information required information to by the extent necessary under provisions of the Code and U.S. Treasury regulations Regulations, including those provisions applicable to REITs;
(xxiiixvi) assisting the Company and its Subsidiaries in handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company and/or its Subsidiaries may be involved or to which the Company they may be subject arising out of the Company’s their day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxivxvii) using commercially reasonable efforts to cause expenses incurred by the Company and its Subsidiaries or on their behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xviii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixix) performing such other services as may be required from time to time for the management of, and other activities relating to to, the assets assets, business and operations of the Company and its Subsidiaries as the Board of Directors shall reasonably request or as the Manager shall deem appropriate under the particular circumstances; andcircumstances and otherwise in accordance with the Company’s qualification as a REIT under the Code;
(xxviixx) advise the Company and its Subsidiaries with respect to proposed renovations and other capital expenditures at the Hotel, including replacements, from time to time, of furniture, fixtures and equipment;
(xxi) using commercially reasonable efforts to cause the Company and its Subsidiaries to comply with all applicable laws; and
(xxii) making recommendations to the Board of Directors with respect to follow-on offerings, tender offers of Common Stock, dispositions of the Hotel and other significant transactions.
(c) For the period and on the terms and conditions set forth in this Agreement, the Company and each of its Subsidiaries hereby constitutes, appoints and authorizes the Manager as its true and lawful agent and attorney-in-fact, in its name, place and stead, to negotiate, execute, deliver and enter into such finance agreements and arrangements, brokerage agreements, and such other agreements, instruments and authorizations on their behalf, on such terms and conditions as the Manager, acting in its sole and absolute discretion, deems necessary or appropriate. This power-of-attorney is deemed to be coupled with an interest.
(d) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and, except as otherwise agreed, to provide services pursuant to agreement(s) with terms that are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value of the Company and its Subsidiaries; provided that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such Affiliate than would be obtained from a third party on an arm’s length basis and shall be subject to approval by a majority of the Independent Directors. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates shall be liable to the Company, its Subsidiaries or the Board of Directors for any act or omission by the Manager or any of its Affiliates, except as provided in Section 11 of this Agreement.
(e) To the extent that the Manager deems necessary or advisable, the Manager may, from time to time, and at the sole cost and expense of the Operating Partnership, or one or more of its Subsidiaries, propose to retain one or more entities for the provision of sub-advisory services to the Manager, in order to enable the Manager to provide the services specified by this Agreement; provided that any agreements relating to such sub-advisory services (A) shall be on terms and conditions substantially identical to the terms and conditions of this Agreement or otherwise not adverse to the Company and its Subsidiaries, and (B) shall not result in an increased Base Management Fee or expenses payable hereunder greater than expenses which would have been incurred if the Manager provided such services directly.
(f) The Manager may retain, for and on behalf, and at the sole cost and expense, behalf of the CompanyCompany and its Subsidiaries, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, real estate agents, environmental consultants, registrars, investment banks, financial advisors, due diligence firms, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company and its Subsidiaries and their assets, including Affiliates of the Manager. The Operating Partnership shall pay or reimburse the Manager or its Affiliates performing such services for the documented cost thereof in accordance with Section 9; provided, however, that the Operating Partnership shall not be required to pay or reimburse the Manager or its Affiliates for any brokerage services in connection with a disposition of the Hotel or substantially all the Company’s interest in the Hotel.
(g) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall prepare, or cause to be prepared, with respect to any investment, reports regarding the Hotel performance and other information reasonably requested by the Company.
(h) The Manager shall prepare, or cause to be prepared, all reports, financial or otherwise, with respect to the Company and its Subsidiaries contractually required or reasonably requested by the Board of Directors in order for the Company and its Subsidiaries to comply with their Governing Instruments or any other materials required to be filed with any governmental body or agency, including but not limited to, the SEC, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s and its Subsidiaries’ books of account by a nationally recognized registered independent public accounting firm.
(i) If requested by the Company or the Operating Partnership, the Manager shall provide such internal audit, compliance and control services as may be required for the Company and its Subsidiaries to comply with applicable law (including the Securities Act and the Exchange Act), regulation (including Commission regulations) and the rules and requirements of any securities exchange on which the Common Stock may be listed and as otherwise reasonably requested by the Company from time to time.
(j) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Operating Partnership or its Subsidiaries pursuant to Section 9 in excess of that contained in any applicable Company Account or otherwise made available by the Operating Partnership or its Subsidiaries to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 12(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(k) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the CompanyOperating Partnership’s or one or more of its Subsidiares’ sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a14) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b15) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company's Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii1) serving as the Company’s 's consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company independent members of the Board of Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the "Guidelines") and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(iii2) serving as the Company’s consultant investigation, analysis and selection of investment opportunities;
(3) with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii4) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that which provide real estateestate brokerage, investment bankingbanking and leasing services, mortgage brokerage, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ix5) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(6) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(7) coordinating and supervising, on behalf of the Company and at the Company's expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(8) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x9) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi10) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii11) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii12) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification 's status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiv13) counseling the Company regarding the maintenance of its qualification status as a REIT real estate investment trust and monitoring compliance with the various REIT real estate investment trust qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xv14) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvi15) furnishing reports assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company's investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or its Subsidiariesexperience with respect to mortgage loans, if anyreal estate, by the Managerreal estate securities and other real estate-related assets;
(xvii16) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of mortgage loans (including on a portfolio basis), real estate, real estate securities and other real estate-related assets, and in connection with the sale and commitment to sell such assets;
(17) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviii18) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix19) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx20) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi21) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii22) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii23) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s 's day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv24) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi25) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii26) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the "Portfolio Management Services") on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company's portfolio of assets; the collection of information and the submission of reports pertaining to the Company's assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company's portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the "Monitoring Services") on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers' delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c16) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arms'-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the independent members of the Board of Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company's prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company's prior written approval.
(17) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(18) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company's operations and asset performance and (iii) other information reasonably requested by the Company.
(19) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company's books of account by a nationally recognized independent accounting firm.
(20) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company's acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(21) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager's acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money ("Excess Funds") in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager's unsatisfactory performance.
(22) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Each of the Company and each Subsidiary hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Assets subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments Assets and the day-to-day operations of the CompanyCompany and each of the Subsidiaries, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors may delegate Company delegates to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and each of the Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments Assets and operations of the Company and each of the Subsidiaries as may be appropriate, which may include, without limitationare set forth below and such other services and activities as the Manager and the Board of Directors agree:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines serving as consultant to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio Company and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant each Subsidiary with respect to the periodic review of the investmentscriteria and parameters utilized by the Manager for sponsoring and capitalizing subsidiaries, making acquisitions, dispositions and borrowings and operations conducting operations, including assisting in the development of such written policies, procedures and guidelines as the Board of Directors determine are useful to management of the businesses of the Company and other policies its Subsidiaries, as the same may be modified from time to time (the “Guidelines”);
(ii) assisting the Company and recommendations with respect thereto, including, without limitation, the Investment Guidelines, each Subsidiary in each case subject developing criteria for asset purchase commitments that are specifically tailored to the approval business objectives of the Board Company and each Subsidiary and making available to each of Directorsthem its knowledge and experience;
(iii) serving as investigation, analysis, selection and execution of acquisition, disposition and hedging opportunities (including accumulating assets for the Company’s consultant with respect to the selection, purchase, monitoring Subsidiaries and disposition making short-term investments of the Company’s investmentsexcess cash);
(iv) serving as the Company’s consultant with respect to decisions regarding any financingsprospective acquisitions and dispositions of Assets, hedging activities or borrowings undertaken by the Company or its Subsidiariesconducting negotiations with sellers and purchasers and their respective agents, including (1) assisting the Company in developing criteria for debt representatives and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsbankers;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and each Subsidiary and at the Company’s expenseexpense of the Company and such Subsidiary, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Assets;
(ixvi) coordinating and managing operations of any joint venture or co-purchased interests held by the Company or any Subsidiary and conducting all matters on behalf thereof with the joint venture or co-purchase partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company and each Subsidiary, until such time as the Company has employed sufficient executive and administrative personnel to handle the Company’s day-to-day business and operations;
(xviii) performing administering and supervising servicing the performance day-to-day operations of the Company and each Subsidiary (other than financial, bookkeeping, accounting and disclosure matters) and such other administrative service functions necessary in the management of the Company and each Subsidiary as may be agreed upon by the Manager and Manager, the Board of Directors, Directors and the management of the Company or the relevant Subsidiary including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations of the Company and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative functionsservice functions and providing on a timely basis documents, information and other assistance to the Company relating to financial, bookkeeping, accounting and disclosure matters sufficient to enable the Company to satisfy its filing obligations under the Securities Exchange Act of 1934;
(xiix) at such time that the Company has employed sufficient executive and administrative personnel to handle the Company’s day-to-day business and operations, assisting such executive and administrative personnel of the Company and third party service providers in financial, bookkeeping, accounting and disclosure matters and in communicating on behalf of the Company and each Subsidiary with the holders of any equity or debt securities of the Company and each Subsidiary as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to assisting the Company hedging strategies and engaging in hedging activities on behalf of monitoring compliance with the Company, consistent with such strategies, as so modified from time to time, with various requirements for the Company’s qualification to be taxed as a REIT partnership for U.S. federal income tax purposes, and not as an association or a publicly traded partnership taxable as a corporation, including compliance with the Investment Guidelines90% gross income requirement set forth in Section 7704(c) of the Internal Revenue Code of 1986, as amended (the “Code”);
(xivxii) counseling the Company and each Subsidiary in complying with all regulatory requirements applicable to it in respect of its business activities, including where applicable regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption exclusions or exemptions from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionsame;
(xvixiii) using commercially reasonable efforts to cause the Company and each Subsidiary to comply with all applicable laws and regulations, furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, and each Subsidiary by the Manager;
(xviixiv) monitoring the operating performance of the Company’s investments Assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixv) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company and each Subsidiary as to its capital structure and capital-raising activitiescapital raising;
(xixxvi) causing assisting the Company and each Subsidiary to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries the Company and (ii) conduct quarterly compliance reviews with respect theretoits Subsidiaries;
(xxxvii) causing assisting the Company and each Subsidiary to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixviii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company and the Subsidiaries may be involved or to which the Company and the Subsidiaries may be subject arising out of the Company’s their day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxix) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company and the Subsidiaries to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixx) performing such of the foregoing services in relation to the Additional Parties as are not otherwise obtained by such Additional Parties from the Manager, its Affiliates, third parties or such entities’ own personnel;
(xxi) performing such other services as may be required from time to time for the management and other activities relating to the assets Assets and the businesses and operations of the Company and its Subsidiaries as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and;
(xxviixxii) using commercially reasonable efforts to cause advising the Company and the Subsidiaries with respect to comply obtaining appropriate warehouse or other financings;
(xxiii) monitoring loan-servicing functions, including but not limited to negotiating servicing agreements, acting as a liaison between the servicers of the Assets and the Company or the Subsidiaries, review of servicers’ delinquency, foreclosure and other reports on Assets, supervising claims filed under any insurance policies and enforcing the obligation of any servicer to repurchase assets. Without limiting the foregoing, the Manager will perform asset management services (the “Asset Management Services”) on behalf of the Company and each Subsidiary with all applicable lawsrespect to the Assets. Such services will include, but not be limited to, consulting with the Company and the Subsidiaries on the purchase and sale of, and other opportunities in connection with, the Assets; the collection of information and the submission of reports pertaining to the Assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Assets; acting as liaison between the Company and each Subsidiary and banking, mortgage banking, investment banking and other parties with respect to the purchase, hedging, financing and disposition of assets; and other customary functions related to portfolio management.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company or the relevant Subsidiaries to provide services to the Company or one or more of the Subsidiaries (including, without limitation, Asset Management Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the Assets; provided that any such agreements entered into with Affiliates of the Manager shall be (i) on terms no more favorable to such Affiliate then would be obtained from a third party on an arm’s-length basis, (ii) to the extent the same do not fall within the provisions of any guidelines adopted by the Board of Directors, approved by a majority of the Independent Directors, and (iii) with respect to Asset Management Services, (A) any such agreements shall also be subject to the prior written approval of the Company and each affected Subsidiary (and approved by a majority of the Independent Directors) and (B) the Manager shall also remain liable for the performance of such Asset Management Services.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyCompany and each Subsidiary, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company and each Subsidiary. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company and each relevant Subsidiary shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company and any affected Subsidiary, prepare, or cause to be prepared, with respect to any Asset, reports and other information with respect to such Asset as may be reasonably requested by the Company and any affected Subsidiary.
(f) Subject to Section 2(b)(viii), the Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company and each Subsidiary, all reports, financial or otherwise (other than financial statements and SEC filings), with respect to the Company and each Subsidiary reasonably required by the Board of Directors in order for the Company and each Subsidiary to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company. ’s and the Subsidiaries’ books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the guidelines and policies approved by the Board of Directors.
(h) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseexpense of the Company and the Subsidiaries.
(di) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification will perform such of the Company foregoing services and the services set forth in Sections 3(a) and 4 below for each Additional Party as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or such Additional Party shall request.
(iiij) would violate any law, rule or regulation For avoidance of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directorsdoubt, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall will not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable provide services that would require the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available certification pursuant to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment Sxxxxxxx-Xxxxx Act of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained2002.
Appears in 1 contract
Samples: Management Agreement (Highland Financial Partners, L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for the Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigating, analyzing and selecting possible investment opportunities;
(iii) serving as the Company’s consultant with respect to the selectionprospective purchases and sales of Investments, purchaseconducting negotiations with sellers and purchasers and their respective agents, monitoring representatives and disposition of the Company’s investmentsinvestment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that who provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and such other financial services and other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate-related securities, other real estate-related assets and non-real estate related assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance of, and commitment to purchase and finance, mortgage loans (including on a portfolio basis), real estate, real estate-related securities, other real estate-related assets and non-real estate-related assets, and the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in long-term asset Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsREITs and non-taxable REIT subsidiaries;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, however, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) Effective as of February 10, 2006, the Manager entered into sub-advisory agreements with each of Cypress (the “Cypress Sub-Advisory Agreement”) and Sharpridge (the “Sharpridge Sub-Advisory Agreement”), providing for the provision of services from each of Cypress and Sharpridge to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement. In the event that either the Cypress Sub-Advisory Agreement or the Sharpridge Sub-Advisory Agreement is terminated at such point in time when this Management Agreement remains in effect, within 180 days of such termination, the Manager shall be required to propose for the approval of the Independent Directors of the Company an acceptable replacement sub-advisory.
(e) To the extent that the Manager deems necessary or advisable, the Manager may, from time to time propose to retain one or more additional entities for the provision of sub-advisory services to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement; provided, however, that any such agreement (i) shall be on terms and conditions substantially identical to the terms and conditions of this Management Agreement, (ii) shall not result in an increased Base Management Fee or expenses to the Company, and (iii) shall be approved by the Independent Directors of the Company.
(f) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, however, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(g) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(h) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(i) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(j) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(k) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Cypress Sharpridge Investments, Inc.)
Appointment and Duties of the Manager. (a) The Effective as of the Purchase Agreement Closing Date, the Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiariesthe Wind-Down, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms and conditions of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets, shall manage the day-to-day affairs of the Company (and the operations all subsidiaries and joint ventures of the Company) and the Wind-Down, at all times will be subject to the supervision supervision, direction and direction management of the Board of Directors Trustees and will have only such functions and authority as the Board of Directors Company may delegate to it. The Company hereby reserves to a majority of the independent Trustees on the Board of Trustees the following powers:
(i) the authority to determine or change the direction of the Company at any time and in the sole discretion of the Board of Trustees, includingincluding without limitation the structure, without limitationterms, timing and other matters related to the Wind-Down;
(ii) the approval or disapproval of prospective dispositions of Investments;
(iii) the approval of the terms of loan documents for any Company financings;
(iv) the approval of the Company’s annual budget (it being understood that the Manager will submit such budget in advance to the Board of Trustees for review and approval, and will provide quarterly updates of performance against the annual budget to the Board of Trustees);
(v) the approval of the retention of the Company’s registered public accountants;
(vi) the approval of any material transaction between the Company and the Manager and its Affiliates, other than transactions pursuant to this Agreement and other transactions in effect as of the Purchase Agreement Closing Date;
(vii) the issuance of equity or debt securities by the Company;
(viii) the grant of equity incentive awards by the Company;
(ix) the entry into joint ventures by the Company or its Subsidiaries;
(x) the approval of entry into any (A) merger, consolidation, reorganization, or business combination of the Company, (B) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (C) a termination, dissolution or liquidation of the Company; and
(xi) such other matters as may be determined by the Board of Trustees from time to time. US-DOCS\107885844.6
(c) Effective as of the Purchase Agreement Closing Date, the Company, subject to Section 2(b) hereby delegates the following functions and authority identified herein and delegated to the Manager herebyManager. The Subject to Section 2(b), the Manager will be responsible for managing the assets, the day-to-day operations affairs and the Wind-Down of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets, operations and operations Wind-Down of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming sourcing, investigating and maintaining evaluating dispositions of Investments, subject to and consistent with the Investment CommitteeManual, which will have the following responsibilities: (A) proposing the Investment Guidelines and making recommendations with respect thereto to the Board of DirectorsTrustees, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.where applicable;
(ii) serving as subject to and consistent with the Investment Manual, conducting negotiations with brokers, sellers and purchasers, and their respective agents and representatives, investment bankers and owners of privately and publicly held real estate or related assets, regarding the sale or other disposition of any Investments;
(iii) managing and monitoring the operating performance of Investments and providing periodic reports to the Board of Trustees, including comparative information with respect to such operating performance and budgeted or projected operating results;
(iv) engaging and supervising independent contractors that provide services relating to the Company, the Investments or the Wind-Down, including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, accounting advisory, securities brokerage, property management/operations, property condition, real estate and leasing advisory and brokerage, and other financial and consulting services reasonably necessary for Manager to perform its duties hereunder (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s consultant with respect to independent public accountant and that the periodic review Independent Trustees and any committee of the investments, borrowings and operations Board of Trustees shall retain the Company and authority to hire its or their own attorneys or other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case advisors);
(v) subject to the any required approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selectionTrustees, purchase, monitoring and disposition negotiating on behalf of the Company’s investments;
(iv) serving as , the Company’s consultant with respect to decisions regarding terms of loan documents for any Company financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing enforcing, monitoring and financing investments managing compliance with loan documents to which the Company is a party on behalf of the Company;
(vii) providing coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with portfolio managementthe joint venture or co-investment partners;
(viii) engaging coordinating and supervisingsupervising all property managers, on behalf tenant operators, leasing agents and developers for the administration, leasing, management and/or development of any of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing administering bookkeeping and supervising accounting functions as are required for the performance of administrative functions necessary in the management management, affairs and Wind-Down of the Company Company, contracting for audits and preparing or causing to be prepared such periodic reports and filings as may be agreed upon required by any governmental authority in connection with the Manager ordinary conduct of the Company’s affairs, and otherwise advising and assisting the Board of DirectorsCompany with its compliance with applicable legal and regulatory requirements, including, without US-DOCS\107885844.6 limitation, periodic reports, returns or statements required under the services in respect Exchange Act, the Code and any regulations or rulings thereunder, the securities and tax statutes of any equity incentive plan jurisdiction in which the Company may establish for is obligated to file such reports, or the Independent Directors, the collection of revenues rules and the payment regulations promulgated under any of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functionsforegoing;
(xi) communicating on behalf advising and assisting in the preparation and filing of all proxies and other forms or documents filed with the SEC pursuant to the Securities Act or any state securities regulators (it being understood that the Company with shall be responsible for the holders content of any equity and all of its SEC filings or debt securities of the Company as required to satisfy the reporting state regulatory filings, and other requirements that Manager shall not be held liable for any costs or liabilities arising out of any governmental bodies misstatements or agencies omissions in the Company’s SEC filings, state regulatory filings or trading exchanges other filings referred to in this subparagraph, whether or markets and to maintain effective relations with such holdersnot material (except by reason of acts constituting bad faith, including website maintenancewillful misconduct, logo design, analyst presentations, investor conferences and annual meeting arrangementsgross negligence or reckless disregard of Manager’s duties under this Agreement);
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and(until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT) (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent Trustees and any Committee of the Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors);
(xiii) taking all necessary actions to enable the Company to make required tax filings and reports, if applicableincluding soliciting shareholders for required information to the extent required by the provisions of the Code applicable to REITs (until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT);
(xiv) counseling the Company regarding the maintenance of its status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder (until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT);
(xv) counseling the Company regarding the maintenance of its exemption from the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from the Investment Company Act;
(xvi) counseling the Company in connection with policy decisions to be made by the Board of Trustees;
(xvii) evaluating and recommending to the Board of Trustees modifications to any hedging strategies in effect as of the Purchase Agreement Closing Date and engaging in hedging activities;
(xviii) communicating with the Company’s investors and analysts as required to satisfy reporting or other requirements of any governing body or exchange on which the Company’s securities are traded and to maintain effective relations with such investors;
(xix) investing and re-investing any moneys and securities of the Company (including investing in short-term Investments pending investment in Investments, taxable REIT subsidiaries payment of fees, costs and (iiexpenses, or payments of dividends or distributions to shareholders and partners of the Company) conduct quarterly compliance reviews with respect thereto;and advising the Company as to its capital structure, including as relates to the Wind-Down; US-DOCS\107885844.6
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Trustees;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors Trustees from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company and the Wind-Down as the Board of Directors shall reasonably request or the Trustees and Manager shall deem appropriate under the particular circumstancesagree from time to time; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable lawslaws and regulations in all material respects, subject to the Company providing appropriate, necessary and timely funding of capital. The independent Trustees on the Board of Trustees have dispositive power in the event of any conflict between the Board of Trustees and the Manager with respect to the functions and authority delegated to the Manager above. Without limiting the foregoing, the Manager will perform portfolio management services on behalf of the Company with respect to the Investments and the Wind-Down. Such services will include, but not be limited to, consulting with the Company on the sale or other disposition of the Company’s assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the sale or other disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(cd) Subject to Section 2(b) above, the Manager may enter into agreements with other parties in connection with its duties hereunder.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management management, operations and operations Wind-Down of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents of any Affiliate of the Manager).
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Trustees, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate US-DOCS\107885844.6 appraiser; (ii) reports and information on the Company’s affairs and asset performance; and (iii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company required by the Board of Trustees in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, as well as all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm (unless the Board of Trustees determines that such an audit is not necessary or advisable).
(h) The Manager shall prepare regular reports for the Board of Trustees to enable the Board of Trustees to review the Company’s assets and performance and compliance with the Investment Manual and any policies approved by the Board of Trustees.
(i) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company Each of the Company, each Subsidiary and any Additional Party hereby appoints the Manager to manage the investments Assets and the day-to-day operations of the Company Company, each of the Subsidiaries and its Subsidiariesany Additional Party, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third partiesparties in accordance with this Agreement.
(b) The Manager, in its capacity as manager of the investments Assets and the day-to-day operations of the Company, each of the Subsidiaries and any Additional Party at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager herebyDirectors. The Manager will be responsible for the day-to-day operations of the Company Company, each of the Subsidiaries and any Additional Party. In connection therewith, the Manager will perform (or cause to be performed) such services and activities relating to the investments Assets and operations of the Company and each of the Subsidiaries as may be appropriate, which may include, without limitationare set forth below (and elsewhere in this Agreement) and such other services and activities as the Manager and the Board of Directors agree upon:
(i) forming assisting the Company and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines each Subsidiary in developing criteria for asset purchase commitments that are specifically tailored to the Board business objectives of Directorsthe Company and each Subsidiary and making available to each of them its knowledge and experience;
(ii) investigation, analysis, selection and execution of acquisition, disposition and hedging opportunities (B) reviewing including accumulating assets for the Company’s Subsidiaries and making short-term investments of excess cash);
(iii) with respect to prospective acquisitions and dispositions of Assets, conducting negotiations with sellers and purchasers and their respective agents, representatives and investment portfolio for compliance bankers;
(iv) advising the Company and the Subsidiaries with respect to obtaining appropriate warehouse or other financings and assisting in the Investment Guidelines on a monthly basis, negotiation of the terms thereof;
(Cv) reviewing the Investment Guidelines adopted by with the Board of Directors on a periodic basisbasis the criteria and parameters utilized by the Manager for sponsoring and capitalizing subsidiaries, (D) reviewing making acquisitions, dispositions and borrowings and conducting operations, including assisting in the diversification development of such policies, procedures and guidelines as the Board of Directors determine are useful to management of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations businesses of the Company and other policies and recommendations with respect thereto, including, without limitationits Subsidiaries (as the same may be modified from time to time, the Investment “Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors”);
(vi) purchasing and financing investments on behalf monitoring loan-servicing functions, including but not limited to negotiating servicing agreements, acting as a liaison between the servicers of the CompanyAssets and the Company or the Subsidiaries, review of servicers’ delinquency, foreclosure and other reports on Assets, supervising claims filed under any insurance policies and enforcing the obligation of any servicer to repurchase Assets;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and each Subsidiary and at the Company’s expenseexpense of the Company and such Subsidiary, independent contractors that who provide real estate, investment banking, lending, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s Assets or the business of the Company and its Subsidiaries;
(viii) coordinating and managing operations of any joint venture or investments (co-purchased interests held by the Company or potential investments)any Subsidiary and conducting all matters on behalf thereof with the joint venture or co-purchase partners;
(ix) providing or arranging for executive and administrative personnel, office space and office services required in rendering services to the CompanyCompany and each Subsidiary;
(x) administering and servicing the day-to-day operations of the Company and each Subsidiary (or arranging for the same) (other than financial, bookkeeping, accounting and disclosure matters, which are addressed below) and performing and supervising the performance of or arranging for such other administrative service functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directorseach Subsidiary, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations of the Company and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative service functions;
(xi) providing such documents, information and other assistance to the Company relating to financial, bookkeeping, accounting and disclosure matters as may be required in connection with the Company’s filing obligations under the Securities Exchange Act of 1934;
(xii) assisting third party service providers in financial, bookkeeping, accounting and disclosure matters;
(xiii) communicating on behalf of the Company and each Subsidiary with the holders of any equity or debt securities of the Company and each Subsidiary, including as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangementsmarkets;
(xiixiv) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixv) evaluating and recommending to (A) causing the Company hedging strategies to comply (and engaging in hedging activities on behalf of monitoring such compliance) with the Company, consistent with such strategies, as so modified from time to time, with various requirements for the Company’s qualification to be taxed as a REIT partnership for U.S. federal income tax purposes, and not as an association or a publicly traded partnership taxable as a corporation, including compliance with the Investment Guidelines90% gross income requirement set forth in Section 7704(c) of the Code, (B) using good faith judgment not to cause the Company to be engaged (or deemed to be engaged) in a trade or business in the United States for U.S. Federal income tax purposes within the meaning of Section 864(b) of the Code, (C) except in respect of short-term financing and acquisition indebtedness, using good faith judgment not to cause the Company to recognize any income that would be treated as “unrelated business taxable income” within the meaning of Section 512 of the Code and (D) assisting the Company (including through an agent) to comply with any of the Company’s withholding obligations under the Code or other applicable tax law;
(xivxvi) counseling the Company and each Subsidiary in complying with regulatory requirements applicable to it in respect of its business activities, including where applicable regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption exclusions or exemptions from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionsame;
(xvixvii) assisting the Company and each Subsidiary to comply with all applicable laws and regulations;
(xviii) furnishing such reports and statistical and economic research to as are agreed upon by the Manager and the Company and each Subsidiary regarding the activities and services performed for the Company or its Subsidiaries, if any, and each Subsidiary by the Manager;
(xviixix) monitoring the operating performance of the Company’s investments Assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results, to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines;
(xviiixx) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company and each Subsidiary as to its capital structure and capital-raising activitiescapital raising;
(xixxxi) causing assisting the Company and each Subsidiary to retain qualified accountants and legal counsel, as applicable, to (i) to, among other things, assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries the Company and (ii) conduct quarterly compliance reviews with respect theretoits Subsidiaries;
(xxxxii) causing assisting the Company and each Subsidiary to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company and/or the Subsidiaries may be involved or to which the Company and/or the Subsidiaries may be subject arising out of their operations, subject to such limitations or parameters as may be imposed from time to time by the Company’s day-to-day operationsBoard of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other acts or services as may be required from time to time for management of the management Assets and other activities relating to the assets day-to-day operations of the Company and its Subsidiaries as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstancescircumstances or as the Board of Directors shall reasonably request; and
(xxviixxv) using commercially reasonable efforts performing such of the foregoing services in relation to cause the Company Additional Parties as are not otherwise obtained by such Additional Parties from the Manager, its Affiliates, third parties or such entities’ own personnel. Without limiting the foregoing, the Manager may perform with respect to comply the Assets or otherwise on behalf of the Company, the Subsidiaries and any Additional Parties other services not specified above in this Section 2(b) (the “Other Services”) on behalf of the Company, each Subsidiary and any Additional Party with all applicable lawsrespect to the Assets.
(c) The Manager may cause the Company or the Subsidiaries to enter into agreements with other parties, including the Manager and its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company or the relevant Subsidiaries to provide services to the Company or one or more of the Subsidiaries pursuant to agreement(s) with terms which are believed to be then customary for agreements regarding the provision of services of such type or nature; provided that any such agreements entered into with the Manager or its Affiliates shall be (A) on terms believed to be no more favorable in the aggregate to the Manager or such Affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of any guidelines adopted by the Board of Directors, approved by the Board of Directors.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyCompany and each Subsidiary, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company and each Subsidiary. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company and each relevant Subsidiary shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided that such costs and reimbursements are believed to be no greater in the aggregate than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, at the reasonable request of the Board of Directors or as may be reasonably requested by the Company and any affected Subsidiary, the Manager shall, at the sole cost and expense of the Company and any affected Subsidiary, prepare, or cause to be prepared, with respect to any Asset, reports and other information with respect to such Asset.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company and each Subsidiary, all reports, financial or otherwise (other than financial statements and SEC filings), with respect to the Company and each Subsidiary reasonably required by the Board of Directors in order for the Company and each Subsidiary to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company. ’s and the Subsidiaries’ books of account by a nationally recognized independent accounting firm.
(g) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseexpense of the Company and the Subsidiaries.
(dh) The Manager will perform such of the foregoing services set forth in Section 2 and the services set forth in Sections 3(a) and 4 below for each Additional Party as such Additional Party shall refrain from any action that, in its sole judgment made in good faith, reasonably request.
(i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification For avoidance of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directorsdoubt, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall will not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable provide services that would require the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available certification pursuant to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment Sxxxxxxx-Xxxxx Act of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained2002.
Appears in 1 contract
Samples: Management Agreement (Tiptree Financial Partners, L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the supervision and direction of the Board of Directors, the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, by the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing changes to the Investment Guidelines to be approved by the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly periodic basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly periodic basis, and (E) generally be responsible for conducting or and overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification requirements to qualify as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries TRSs and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded exempted from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such the qualification of the Company as a REIT or the Company’s status as an entity intended to be exempted from registration under the Investment Company Act or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq’s rules and requirements, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (American Capital Mortgage Investment Corp.)
Appointment and Duties of the Manager. (a) The Company and each of the Subsidiaries hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company Company, the Series and its Subsidiaries, the Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The parties acknowledge that (i) the Manager is registered under the Advisers Act; (ii) the Manager performs its services for the Company, the Series and the Subsidiaries through the personnel and facilities of Apollo; (iii) the Manager has no, and will have no, employees or other persons acting on its behalf other than (A) officers, partners and employees of Apollo, or (B) other persons who are subject to the supervision and control of Apollo; and (iv) all of the investment advisory activities of the Manager are subject to the Advisers Act and the rules thereunder.
(c) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, the Series and the Subsidiaries, at all times will shall be subject to the supervision and direction of the Board of Directors and will shall have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Company, the Series and will the Subsidiaries. The Manager shall perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company Company, the Series and the Subsidiaries as may be appropriate, which may includeincluding, without limitation:
(i) forming i. originating and maintaining the Investment Committeerecommending opportunities to acquire Asset-Backed Finance Assets and to finance Asset-Backed Finance Assets, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance consistent with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategy of the Company’s investment portfolio , the Series and the Company’s hedging Subsidiaries;
ii. monitoring and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as evaluating the Company’s consultant with respect to ’s, the periodic Series’ and the Subsidiaries’ Asset-Backed Finance Assets;
iii. analyzing and investigating potential dispositions of Asset-Backed Finance Assets, including identification of potential acquirers and evaluations of offers made by such potential acquirers;
iv. structuring of acquisitions and financings of Asset-Backed Finance Assets;
v. identifying bank and institutional sources of financing for the Company, each Series and its Asset-Backed Finance Assets, arrangement of appropriate introductions and marketing of financial proposals;
vi. supervising the preparation and review of all documents required in connection with the investmentsacquisition, borrowings and operations disposition or financing of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsAsset-Backed Finance Asset;
(iii) serving as vii. administering the Company’s consultant with respect to the selection, purchase, monitoring day-to-day operations and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of such other administrative functions necessary in to the management of the Company and the Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations of the Company, the Series and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative functions, in each case, for which the Company shall reimburse the Manager;
viii. monitoring the performance of Asset-Backed Finance Assets and, where appropriate, providing advice regarding the management of Asset-Backed Finance Assets;
ix. arranging and coordinating the services of other professionals and consultants, including Apollo personnel;
x. making recommendations to the Company with respect to the Company’s repurchase offers;
xi. originating, recommending opportunities to form, acquiring, structuring, coordinating and assisting with managing operations of any joint venture or Asset-Backed Finance Assets held by the Company, the Series or the Subsidiaries and conducting all matters with the joint venture or other partners consistent with the business objectives and strategies of the Company (xiincluding, for the avoidance of doubt, the power to structure joint ventures that provide that any controlling interest of the Company shall be forfeited upon termination of this Agreement);
xii. advising the Company, the Series and the Subsidiaries on, preparing, negotiating and entering into, on behalf of the Company, the Series or the Subsidiaries, applications and agreements relating to programs established by the U.S. government;
xiii. arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the Company’s, the Series’ and the Subsidiaries’ business;
xiv. communicating on behalf of the Company and the Subsidiaries with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) xv. counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) xvi. evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, the Series and the Subsidiaries, consistent with such strategies, strategies as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) xvii. counseling the Company and the Subsidiaries regarding the maintenance of its qualification as a REIT and monitoring compliance with their exclusion from the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause them to maintain such exclusion from such status;
(xvi) xviii. furnishing reports and statistical and economic research to the Company and the Subsidiaries regarding the their activities and services performed for the Company or its SubsidiariesCompany, if any, the Series and the Subsidiaries by the Manager;
(xvii) xix. monitoring the operating performance of the Company’s investments Asset-Backed Finance Assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) xx. investing and re-investing reinvesting any monies moneys and securities of the Company Company, the Series and the Subsidiaries (including investing in short-term investmentsAsset-Backed Finance Assets pending the acquisition of other Asset-Backed Finance Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders shareholders and partners members of the CompanyCompany and the Subsidiaries) and advising the Company and the Subsidiaries as to its their capital structure and capital-raising activitiescapital raising;
(xix) causing xxi. assisting the Company to retain and the Subsidiaries in retaining qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting systems and procedures, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing xxii. assisting the Company and the Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) xxiii. assisting the Company Company, the Series and the Subsidiaries in complying with all regulatory requirements applicable to the Company them in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) xxiv. assisting the Company, the Series and the Subsidiaries in taking all necessary actions action to enable the Company and any Subsidiaries them to make required tax filings and reports;
xxv. placing, including soliciting stockholders for required information or facilitating the placement of, all orders pursuant to the extent necessary under Manager’s acquisition determinations for the Code Company, the Series and U.S. Treasury regulations applicable to REITsthe Subsidiaries either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer);
(xxiii) xxvi. handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) on the Company’s, the Series’ and/or the Subsidiaries’ behalf in which the Company Company, the Series and/or the Subsidiaries or their respective Asset-Backed Finance Assets, may be involved or to which the Company they may be subject arising out of the Company’s their day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) xxvii. using commercially reasonable efforts to cause expenses incurred by the Company, the Series and the Subsidiaries or on their behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
xxviii. advising the Company, the Series and the Subsidiaries with respect to and structuring long-term financing vehicles for the Asset-Backed Finance Assets, and offering and selling securities publicly or privately in connection with any such structured financing;
xxix. serving as the Company’s, the Series’ and the Subsidiaries’ consultant with respect to decisions regarding any of their financings, hedging activities or borrowings undertaken by the Company, the Series and the Subsidiaries including (xxvi1) performing assisting the Company, the Series and the Subsidiaries in developing criteria for debt and equity financing that are specifically tailored to their objectives, and (2) advising the Company, the Series and the Subsidiaries with respect to obtaining appropriate financing for their acquisitions;
xxx. providing the Company, the Series and the Subsidiaries with such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or may, from time to time, appoint the Manager shall deem appropriate under to be responsible for and perform, consistent with the particular circumstancesterms of this Agreement; and
(xxvii) xxxi. using commercially reasonable efforts to cause the Company Company, the Series and the Subsidiaries to comply with all applicable laws.
xxxii. determining any requirement for Shareholders to provide information in accordance with Section 2.1.4 of Exhibit B of the LLC Agreement or the principles thereof. Without limiting the foregoing, the Manager shall perform portfolio management services (cthe “Portfolio Management Services”) on behalf of the Company, the Series and the Subsidiaries with respect to the Asset-Backed Finance Assets. Such services will include, but not be limited to, consulting with the Company, the Series and the Subsidiaries on the purchase and sale of, and other opportunities in connection with, the Company’s, the Series’ and the Subsidiaries’ portfolios of assets; the collection of information and the submission of reports pertaining to the Company’s, the Series’ and the Subsidiaries’ assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s, the Series’ and the Subsidiaries’ portfolios of assets; acting as liaison between the Company, the Series and the Subsidiaries and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management.
(d) For the period and on the terms and conditions set forth in this Agreement, the Company, each Series and each of the Subsidiaries hereby constitutes, appoints and authorizes the Manager as its true and lawful agent and attorney-in-fact, in its name, place and stead, to negotiate, execute, deliver and enter into such credit finance, securities repurchase and reverse repurchase agreements and arrangements, warehouse finance, brokerage agreements, interest rate swap and other hedging agreements, custodial agreements and such other agreements, instruments and authorizations on their behalf, on such terms and conditions as the Manager, acting in its sole and absolute discretion, deems necessary or appropriate. This power of attorney is deemed to be coupled with an interest.
(e) The Manager may retainenter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company, the Series and the Subsidiaries to provide loan origination services, asset management services, portfolio servicing, and/or other services to the Company, the Series and the Subsidiaries (including, without limitation, Portfolio Management Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company, the Series and the Subsidiaries; provided that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such Affiliate than would be obtained from a third party on an arm’s-length basis and (B) approved by a majority of the Independent Directors and (ii) (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services.
(f) In addition, to the extent that the Manager deems necessary or advisable, the Manager may, from time to time, propose to retain one or more additional entities for the provision of sub-advisory services to the Manager in order to enable the Manager to provide the services to the Company, the Series and the Subsidiaries specified by this Agreement; provided that any such agreement (i) shall be on terms and conditions substantially identical to the terms and conditions of this Agreement or otherwise not adverse to the Company, the Series and the Subsidiaries and (ii) shall be approved by the Independent Directors of the Company.
(g) The Manager may retain, for and on behalf and at the sole cost and expense of the Company, the Series and the Subsidiaries, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, valuation firms, financial advisors, due diligence firms, underwriting review firms, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company, the Series and the Subsidiaries. In performing its duties under this Section 2Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be entitled rendered by its personnel or Affiliates. Except as otherwise provided herein, the Company, the Series and the Subsidiaries shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided that, subject to rely reasonably Section 9 of this Agreement, such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on qualified experts and professionals an arm’s-length basis.
(h) The Manager may effect transactions by or through the agency of another Person with it or its Affiliates which have an arrangement under which that party or its Affiliates shall from time to time provide to or procure for the Manager and/or its Affiliates goods, services or other benefits (including, without limitationbut not limited to, accountantsresearch and advisory services; economic and political analysis, legal counsel including valuation and other professional service providers) hired by performance measurement; market analysis, data and quotation services; computer hardware and software incidental to the above goods and services; clearing and custodian services and investment related publications), the nature of which is such that provision can reasonably be expected to benefit the Company, the Series and the Subsidiaries as a whole and may contribute to an improvement in the performance of the Company, the Series and the Subsidiaries or the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable in providing services to the Company, the Board of Directors, or Series and the Company’s stockholders for any act or omission by Subsidiaries on terms that no direct payment is made but instead the Manager or any of and/or its Affiliates, except as provided in Section 8 of this AgreementAffiliates undertake to place business with that party.
(ei) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.In executing portfo
Appears in 1 contract
Samples: Operating Agreement (Apollo Asset Backed Credit Co LLC)
Appointment and Duties of the Manager. (a) The Company Partnership hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Managed Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by including providing the Company for such purposes as set forth in Section 7 hereof. services of the Chairman, Chief Executive Officer, President and Chief Operating Officer of Steel Partners Holdings GP Inc. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be delegated to or provided by third parties, whether or not affiliated with the Manager (provided that no such delegation by the Manager shall relieve the Manager of responsibility therefor), and the Partnership, at the direction of the Manager, will enter into agreements directly with such third parties to whom such duties may be delegated, as the Manager deems appropriate.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyManaged Entities, at all times will be subject to the supervision and direction of the Board of Directors General Partner and will have only such functions and authority as the Board of Directors General Partner may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager and its key senior executives will be responsible for the day-to-day operations of the Company Managed Entities and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Managed Entities as may be appropriateappropriate for a Chief Executive Offer and President to perform, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the CompanyPartnership’s consultant with respect to the periodic review of the investments, borrowings Business and operations of the Company Managed Entities and any modifications to its purpose as directed by the General Partner and consented to by the Manager and other policies established by the General Partner and recommendations with respect theretoapproved by the Manager;
(ii) investigation, includinganalysis, without limitation, selection and implementation of business opportunities for the Investment Guidelines, in each case subject to the approval of the Board of DirectorsManaged Entities;
(iii) serving as the Company’s consultant with respect to prospective business opportunities by the selectionManaged Entities, purchaseconducting negotiations with sellers and purchasers and their respective agents and representatives and having discretion to determine if and when to proceed with any such business opportunities, monitoring and disposition including entering into, on behalf of the Company’s investmentsManaged Entities, any agreements with other Persons with respect to any such business opportunities;
(iv) serving as entering into any agreements on behalf of the Company’s consultant Managed Entities in connection with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or performance of its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsobligations under this Agreement;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company Managed Entities and at the Company’s Managed Entities’ expense, independent contractors that which provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agentcustodial, registrar administration and other services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Business;
(ixvi) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyManaged Entities;
(xvii) supervising the day-to-day operations of the Managed Entities and performing and supervising the performance of such other administrative functions necessary in the management of the Company Managed Entities as may be agreed upon by the Manager General Partner and the Board of DirectorsManager, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s Managed Entities’ debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company Managed Entities in connection with policy decisions to be made by the Board General Partner or the relevant management team of Directorsa Managed Entity;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the Company’s investments Managed Entities and providing periodic reports with respect thereto to the Board General Partner or the relevant management team of Directorsa Managed Entity, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiix) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Managed Entities may be involved or to which the Company Managed Entities may be subject arising out of the Company’s day-to-day operationsoperations of the Managed Entities;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxi) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Managed Entities to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;customary; and
(xxvixii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Managed Entities as the Board General Partner or the relevant management team of Directors a Managed Entity shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, or direct the Managed Entities to enter into such agreements directly, for the purpose of engaging one or more parties for and on behalf of the Managed Entities to provide management and/or other services to the Managed Entities pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have businesses similar in type to the Managed Entities; provided that with respect to any agreements entered into with Affiliates of the Manager pursuant to which such Affiliates shall perform any obligations of the Manager under this Agreement and in respect of which the Manager receives the Management Fee, the Manager shall provide prompt notice of the terms of such agreement or arrangement to the Independent Directors, and further provided that any arrangement entered into directly by the Managed Entities with such other party to perform any obligations of the Manager under this Agreement shall result in a reduction of the Management Fee payable under this Agreement in the amount of the fees charged under such direct arrangement.
(d) As provided in SECTION 2(b)(v), the Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyPartnership or the Managed Entities, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyManaged Entities and the Business. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Partnership or the Managed Entities shall pay or reimburse the Manager or its Affiliates performing such services for the cost and expenses thereof; provided that such costs and reimbursements as to Affiliates of the Manager are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the General Partner, the Manager shall, at the sole cost and expense of the Partnership or the Managed Entities, prepare, or cause to be prepared, any reports and other information with respect to the Business as may be reasonably requested by the General Partner.
(f) The Manager shall prepare regular reports for the General Partner to enable the General Partner to review the Business and compliance with the guidelines and policies approved by the General Partner.
(g) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not provide advice, and will have no authority to make the actual decisions, with respect to the acquisition or disposition of securities, which shall be vested in the General Partner.
(h) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Managed Entities in excess of that contained in any applicable Partnership Account or otherwise made available by the Managed Entities to be expended by the Manager hereunder or any other party with respect to the Managed Entities. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Partnership under SECTION 15(a) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) Managers, members, partners, officers, employees or agents may serve as directors, officers, employees, agents, nominees or signatories for the Managed Entities, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the General Partner pursuant to the Partnership’s Governing Instruments. When executing documents or otherwise acting in such capacities for a Managed Entity, such persons shall use their respective titles in the Partnership or such other Managed Entity, to the extent that they are an officer of the Partnership or such other Managed Entity or shall use their respective titles in the Manager.
(j) The General Partner shall pass any and all necessary resolutions to provide for the delegation of its duties to the Manager under this Agreement (and to facilitate the delegation of duties to the Manager in respect of the other Managed Entities), and to permit such delegation to be approved or evidenced by acts of the Board of Directors, or by any certificate duly signed by any officer of the General Partner (or, as applicable, the officers or authorized persons of the other Managed Entities), to verify or confirm the authority of the Manager or any of its members, partners, officers, employees or agents authority to enter into agreements on behalf of and bind the Partnership (and each Managed Entity).
(k) In performing its duties under this Section SECTION 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Managed Entities’ sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Steel Partners Holdings L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development, brokerage, financial advisory, custodial and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare, at the sole cost and expense of the Company, regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseexpenseSECTION 3.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming serving as the Company’s consultant with respect to the periodic review of investment criteria and maintaining the Investment Committeeparameters for investments, which will have the following responsibilities: borrowings and operations (A) proposing including, without limitation, the Investment Guidelines and Conflicts of Interest Policy, any modifications to which shall be approved by a majority of the Independent Directors) and other policies and recommendations with respect thereto for approval by the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.;
(ii) serving as the Company’s consultant with respect to the periodic review identification, investigation, evaluation, analysis, selection, purchase, origination, negotiation, structuring, monitoring and disposition of the Company’s investments, borrowings and operations including the accumulation of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsassets for securitization;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, securitizations, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing warehouse or other financings for its investments;
investments and (v3) advising the Company with respect to incentive plans that and structuring long-term financing vehicles for the Company’s investments, and advising the Company may establish with respect to offering and selling securities publicly or privately in connection with any such structured financing;
(iv) serving as the Company’s consultant with respect to arranging for the Independent Directorsissuance of mortgage backed securities from pools of mortgage loans or mortgage backed securities owned by the Company;
(v) representing and making recommendations to the Company in connection with the purchase and finance and commitment to purchase and finance investments;
(vi) purchasing with respect to any prospective investment by the Company and financing investments any sale, exchange or other disposition of any investment by the Company, conducting negotiations on behalf of the CompanyCompany with real estate brokers, sellers and purchasers and their respective agents, representatives and investment bankers and owners of privately and publicly held real estate companies;
(vii) providing the Company with portfolio management, asset servicing and loan servicing, including enforcing rights, exercising remedies, granting consents, and taking other actions on behalf of the Company in respect of the Company’s investments;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, mortgage brokerage, securities brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting, transfer agent, registrar registrar, leasing, master servicing, special servicing, due diligence and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(x) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxi) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity of the Company’s incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xixii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixiii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixiv) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations Regulations promulgated thereunder;
(xvxvi) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixvii) making available to the Company the Manager’s knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets and real estate operating companies;
(xviii) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixix) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixx) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxxi) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxxii) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixxiii) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or and the Securities ActAct or by the NYSE;
(xxiixxiv) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxv) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxivxxvi) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxvii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxviii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxix) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers (including title insurers), surveyors, engineering, environmental and firms referred to in Section 7(b) hereof seismic consultants, insurance consultants and brokers, public relations and marketing consultants, information technology consultants, investment relations advisers, securities brokers, mortgage brokers, transfer agents, registrars, financial printers, developers, investment banks, financial advisors, internal audit service providers, banks and other lenders, consultants, agents, contractors, vendors, advisors and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of Manager, its Affiliates (including American Capital) directors, officers, stockholders and employees shall not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager Manager, its directors, officers, stockholders or any of its Affiliates, employees except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company Partnership hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Managed Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by including providing the Company for such purposes as set forth in Section 7 hereof. services of the Chairman, Chief Executive Officer, President and Chief Operating Officer of Steel Partners Holdings GP Inc. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be delegated to or provided by third parties, whether or not affiliated with the Manager (provided that no such delegation by the Manager shall relieve the Manager of responsibility therefor), and the Partnership, at the direction of the Manager, will enter into agreements directly with such third parties to whom such duties may be delegated, as the Manager deems appropriate.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyManaged Entities, at all times will be subject to the supervision and direction of the Board of Directors General Partner and will have only such functions and authority as the Board of Directors General Partner may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager and its key senior executives will be responsible for the day-to-day operations of the Company Managed Entities and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Managed Entities as may be appropriateappropriate for a Chief Executive Offer and President to perform, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s Partnership's consultant with respect to the periodic review of the investments, borrowings Business and operations of the Company Managed Entities and any modifications to its purpose as directed by the General Partner and consented to by the Manager and other policies established by the General Partner and recommendations with respect theretoapproved by the Manager;
(ii) investigation, includinganalysis, without limitation, selection and implementation of business opportunities for the Investment Guidelines, in each case subject to the approval of the Board of DirectorsManaged Entities;
(iii) serving as the Company’s consultant with respect to prospective business opportunities by the selectionManaged Entities, purchaseconducting negotiations with sellers and purchasers and their respective agents and representatives and having discretion to determine if and when to proceed with any such business opportunities, monitoring and disposition including entering into, on behalf of the Company’s investmentsManaged Entities, any agreements with other Persons with respect to any such business opportunities;
(iv) serving as entering into any agreements on behalf of the Company’s consultant Managed Entities in connection with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or performance of its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsobligations under this Agreement;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company Managed Entities and at the Company’s Managed Entities' expense, independent contractors that which provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agentcustodial, registrar administration and other services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Business;
(ixvi) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyManaged Entities;
(xvii) supervising the day-to-day operations of the Managed Entities and performing and supervising the performance of such other administrative functions necessary in the management of the Company Managed Entities as may be agreed upon by the Manager General Partner and the Board of DirectorsManager, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s Managed Entities' debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company Managed Entities in connection with policy decisions to be made by the Board General Partner or the relevant management team of Directorsa Managed Entity;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the Company’s investments Managed Entities and providing periodic reports with respect thereto to the Board General Partner or the relevant management team of Directorsa Managed Entity, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiix) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Managed Entities may be involved or to which the Company Managed Entities may be subject arising out of the Company’s day-to-day operationsoperations of the Managed Entities;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxi) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Managed Entities to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;customary; and
(xxvixii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Managed Entities as the Board General Partner or the relevant management team of Directors a Managed Entity shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, or direct the Managed Entities to enter into such agreements directly, for the purpose of engaging one or more parties for and on behalf of the Managed Entities to provide management and/or other services to the Managed Entities pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have businesses similar in type to the Managed Entities; provided that with respect to any agreements entered into with Affiliates of the Manager pursuant to which such Affiliates shall perform any obligations of the Manager under this Agreement and in respect of which the Manager receives the Management Fee, the Manager shall provide prompt notice of the terms of such agreement or arrangement to the Independent Directors, and further provided that any arrangement entered into directly by the Managed Entities with such other party to perform any obligations of the Manager under this Agreement shall result in a reduction of the Management Fee payable under this Agreement in the amount of the fees charged under such direct arrangement.
(d) As provided in SECTION 2(b)(v), the Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyPartnership or the Managed Entities, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyManaged Entities and the Business. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Partnership or the Managed Entities shall pay or reimburse the Manager or its Affiliates performing such services for the cost and expenses thereof; provided that such costs and reimbursements as to Affiliates of the Manager are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the General Partner, the Manager shall, at the sole cost and expense of the Partnership or the Managed Entities, prepare, or cause to be prepared, any reports and other information with respect to the Business as may be reasonably requested by the General Partner.
(f) The Manager shall prepare regular reports for the General Partner to enable the General Partner to review the Business and compliance with the guidelines and policies approved by the General Partner.
(g) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not provide advice, and will have no authority to make the actual decisions, with respect to the acquisition or disposition of securities, which shall be vested in the General Partner.
(h) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Managed Entities in excess of that contained in any applicable Partnership Account or otherwise made available by the Managed Entities to be expended by the Manager hereunder or any other party with respect to the Managed Entities. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Partnership under SECTION 16(a) to terminate this Agreement due to the Manager's unsatisfactory performance.
(i) Managers, members, partners, officers, employees or agents may serve as directors, officers, employees, agents, nominees or signatories for the Managed Entities, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the General Partner pursuant to the Partnership's Governing Instruments. When executing documents or otherwise acting in such capacities for a Managed Entity, such persons shall use their respective titles in the Partnership or such other Managed Entity, to the extent that they are an officer of the Partnership or such other Managed Entity or shall use their respective titles in the Manager.
(j) The General Partner shall pass any and all necessary resolutions to provide for the delegation of its duties to the Manager under this Agreement (and to facilitate the delegation of duties to the Manager in respect of the other Managed Entities), and to permit such delegation to be approved or evidenced by acts of the Board of Directors, or by any certificate duly signed by any officer of the General Partner (or, as applicable, the officers or authorized persons of the other Managed Entities), to verify or confirm the authority of the Manager or any of its members, partners, officers, employees or agents authority to enter into agreements on behalf of and bind the Partnership (and each Managed Entity).
(k) In performing its duties under this Section SECTION 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Managed Entities' sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Steel Partners Holdings L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estateservices relating to the Investments, including, but not limited to, investment banking, legal advisory, tax advisory, accounting advisory, securities brokerage, insurancereal estate advisory and brokerage, legal, accounting, transfer agent, registrar and such other financial and consulting services as may be required relating the Manager determines from time to the Company’s operations or investments (or potential investments)time is advisable;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvixiii) furnishing reports assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or experience with respect to its Subsidiaries, if any, by the Managertarget assets;
(xviixiv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such assets;
(xv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITsprovisions of the Code;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates (subject to Section 2(d) below), for the purpose of engaging one or more asset managers for and on behalf, and at the sole cost and expense, of the Company to provide operations management, asset management, personnel management, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided, that (i) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (ii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) Transactions between the Manager and any affiliate (including, but not limited to, any amendments to this Agreement or any issuance by the Company of equity to existing shareholders as of the date of this Agreement that would change the relative equity ownership percentages among such existing shareholders) must be approved in advance by the majority of the Independent Directors and be determined by such Independent Directors to be in the best interests of the Company. If any affiliate transaction involving the acquisition of an asset from the Manager or an affiliate of the Manager is not approved in advance by a majority of the Independent Directors, then the Manager may be required to repurchase the asset at the purchase price (plus closing costs) to the Company.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. Commencing from the Listing, the Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s‑length basis.
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, performance and compliance with policies approved by the Board of Directors.
(i) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (New Media Investment Group Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties, including Affiliates of the Manager.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(viivi) providing the Company with portfolio management;
(viiivii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixviii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification and maintenance of the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding its qualification and the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixv) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixvi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct or by the OTC Bulletin Board or the requirements of such other stock exchange as the Shares may be listed on following the date hereof as applicable;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxivxxiii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.the
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business and affairs of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement Agreement, to the directions of the Executive Committee and to the supervision of, and such further limitations or parameters of the Board. Except as may be imposed from time to time byotherwise provided in this Agreement, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company reimburses the Manager for such purposes as set forth costs and expenses in accordance with Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third partiesparties and/or its Affiliates.
(b) The Manager, in its capacity as manager of the investments business and the operations affairs of the Company, at all times will be subject to the supervision and direction of the Executive Committee and the supervision of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, managing the functions Company’s activities and authority identified herein business affairs in conformity with the Company’s business objectives and delegated other policies that are approved and monitored by the Board and/or the Executive Committee.
(c) Subject to the oversight of the Board and the terms and conditions of this Agreement, the Manager hereby. The Manager will have plenary authority with respect to the management of the business and affairs of the Company and will be responsible for the day-to-day operations management of the Company and Company; provided, however, that decisions with respect to Infrastructure Assets shall require approval by the Executive Committee. The Manager will perform (or cause to be performedperformed through one or more of its Affiliates or Subsidiaries) such services and activities relating to the investments business and operations affairs of the Company as may be appropriateappropriate or otherwise mutually agreed from time to time, which may include, without limitation:
(i) forming originating, recommending opportunities to form, acquiring, structuring, coordinating and maintaining assisting with managing operations of any joint venture or Infrastructure Assets held by the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance Company and conducting all matters with the Investment Guidelines on a monthly basis, (C) reviewing joint venture partners consistent with the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategies of the Company’s investment portfolio and Company (including, for the Company’s hedging and financing strategies on a monthly basisavoidance of doubt, and (E) generally be responsible for conducting or overseeing the provision power to structure joint ventures that provide that any controlling interest of the services set forth in Company shall be forfeited upon termination of this Section 2.Agreement);
(ii) serving as an advisor to the Company’s consultant Company with respect to the establishment and periodic review of the investmentsCompany’s business objectives, borrowings financing activities and operations operations, any modifications to which will be approved by a majority of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsBoard;
(iii) serving as identifying, investigating, analyzing, and selecting possible acquisition opportunities and originating, negotiating, acquiring, consummating, documenting, monitoring, evaluating, financing, retaining, identifying potential acquirers, investigating potential dispositions, selling, negotiating for prepayment, restructuring, refinancing, hypothecating, pledging or otherwise disposing of Infrastructure Assets and other interests consistent in all material respects with the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsbusiness objectives;
(iv) serving as with respect to prospective purchases, sales, exchanges or other dispositions, conducting negotiations on the Company’s consultant behalf with respect to decisions regarding any financingssellers, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivespurchasers, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsother counterparties and, if applicable, their respective agents, advisors and representatives;
(v) advising negotiating and entering into, on the Company Company’s behalf, repurchase agreements, interest rate or currency swap agreements, hedging arrangements, financing arrangements (including bank loans, institutional sources of financing and/or one or more credit facilities), foreign exchange transactions, derivative transactions, and other agreements and instruments required or appropriate in connection with respect to incentive plans that the Company may establish for the Independent DirectorsCompany’s activities;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors contractors, advisors, consultants, attorneys, accountants, auditors, administrators, and other service providers (which may include Affiliates of the Manager) that provide real estatevarious services with respect to the Company, including, without limitation, investment banking, securities brokerage, insuranceconsulting services, legalcredit analysis, accountingrisk management services, transfer agentasset management services, registrar loan servicing, other financial, legal or accounting services, due diligence services, underwriting review services, and such all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations activities or investments acquisitions (or potential investmentsacquisitions);
(ixvii) providing executive and administrative personnel, office space and office services for the Company and as required in rendering services to the Company;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling advising the Company in connection with policy decisions to be made by the Board of Directorsor the Executive Committee;
(xiiixi) engaging one or more sub-advisors with respect to the management of the Company, including, where appropriate, Affiliates of the Manager;
(xii) evaluating and recommending to the Company Executive Committee hedging strategies and engaging in hedging activities on behalf of the Company’s behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelinesbusiness objectives;
(xivxiii) counseling advising the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in Company’s exclusion from the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from the definition of an investment company under the Investment Company Act;
(xvixiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager and its Affiliates;
(xviixv) monitoring the operating performance of the Company’s investments Infrastructure Assets and providing periodic reports with respect thereto to the Board of Directorsand the Executive Committee, including comparative information with respect to such operating performance and budgeted or projected operating resultsresults and providing advice regarding the management of joint ventures and Infrastructure Assets;
(xviiixvi) investing and re-investing reinvesting any monies moneys and securities of the Company (including investing in short-term investmentsinvestments pending deployment in other Infrastructure Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company’s shareholders and partners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain a qualified accountants independent public accounting firm and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly periodic compliance reviews with respect thereto;
(xxxviii) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s business activities, including (1) preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct and facilitating compliance with the Sxxxxxxx-Xxxxx Act of 2002 and the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act of 2010;
(xxiixx) assisting the Company in taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxi) placing, or arranging for the placement of, all orders pursuant to the Manager’s investment determinations for the Company either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer), and selecting the markets in which such orders shall be executed;
(xxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsactivities (other than with the Manager or its Affiliates), subject to such reasonable limitations or parameters as may be imposed from time to time by the Board or the Executive Committee;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board or the Executive Committee from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) serving as the Company’s advisor with respect to decisions regarding any of the Company’s financings, hedging activities or borrowings undertaken by the Company, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s business objectives, and (2) advising the Company with respect to obtaining appropriate financing for the Company’s assets (which, in accordance with applicable law and the terms and conditions of this Agreement and the Company’s Governing Agreements may include financing by the Manager or its Affiliates);
(xxvi) providing the Company with portfolio management and other related services;
(xxvii) arranging marketing materialsmaterials and other related documentation, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;’s business; and
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxviii) performing such other services as may be required from time to time for in connection with the management of the business and other activities relating to the assets affairs of the Company and its activities as the Board of Directors or the Executive Committee shall reasonably request or and/or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons Persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company, which may include Affiliates of the Manager; provided that any such services may be provided by Affiliates only to the extent (i) such services are on arm’s length terms and competitive market rates in relation to terms that are then customary for agreements regarding the provision of such services to companies that have assets similar in type, quality and value to the assets of the Company and its Subsidiaries, (ii) the specific type of transaction is expressly provided for under this Agreement or the Company’s Governing Agreements (including the payment of Management Fees, Monitoring Fees, Transaction Fees, Regulated Broker Dealer Fees, Loan Servicing Fees, Service Costs, Asset Leasing Fees, Capstone Fees and Break-Up Fees) or (iii) such services are approved by a majority of the Independent Directors. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall keep the Board and the Executive Committee reasonably informed on a periodic basis as to any services provided by Affiliates of the Manager.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s and its Subsidiaries’ status as an entity entities excluded from investment company status under the Investment Company Act, Act or (iiiii) would materially violate the Conduct Policies, any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed and its Subsidiaries or that would otherwise not be permitted by the Company’s applicable Governing InstrumentsAgreements. If the Manager is ordered to take any action by the Board of DirectorsExecutive Committee, the Manager shall seek to promptly notify the Board of Directors Executive Committee if it is the Manager’s reasonable judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing InstrumentsAgreements. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, the Executive Committee or the Company’s stockholders shareholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company (including the Board of Directorsand the Executive Committee) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqCode, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If .
(g) As frequently as the Manager is not able to provide a servicemay deem reasonably necessary or advisable, or in at the reasonable judgment of the Manager it is not prudent to provide a service, without the approval direction of the Board of Directorsor the Executive Committee, as applicable, then the Manager shall prepare, or, at the sole cost and expense of the Company, cause to be excused from providing such service prepared, (i) reports and other information on the Company’s operations and (ii) other information relating to any proposed or consummated Infrastructure Asset as may be reasonably requested by the Company.
(h) The Manager shall prepare, or, at the sole cost and expense of the Company, cause to be prepared, all periodic reports and financial statements with respect to the Company reasonably required by the Board or the Executive Committee in order for the Company to comply with its Governing Agreements, or any other materials required to be filed with any governmental body or agency, including but not limited to the SEC, and shall not prepare, or, at the sole cost and expense of the Company, cause to be in breach prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of this Agreementthe Company’s books of account by a nationally recognized independent accounting firm.
(i) until The Manager shall prepare, or, at the applicable approval has been obtainedsole cost and expense to the Company, cause to be prepared, regular reports for the Board or the Executive Committee to enable the Board or the Executive Committee to review the Company’s acquisitions, portfolio composition and characteristics, performance, asset performance and consistency with the Company’s business objectives, and policies approved by the Board.
Appears in 1 contract
Samples: Management Agreement (KKR Infrastructure Conglomerate LLC)
Appointment and Duties of the Manager. (a) The Company SP Corporate hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Managed Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by including providing the Company for such purposes as set forth in Section 7 hereof. services of the Chairman, Chief Executive Officer, President and Chief Operating Officer of Steel Partners Holdings GP Inc. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be delegated to or provided by third parties, whether or not affiliated with the Manager (provided that no such delegation by the Manager shall relieve the Manager of responsibility therefor), and SP Corporate, at the direction of the Manager, will enter into agreements directly with such third parties to whom such duties may be delegated, as the Manager deems appropriate.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyManaged Entities, at all times will be subject to the supervision and direction of the Board of Directors SP Corporate and will have only such functions and authority as the Board of Directors SP Corporate may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager and its key senior executives will be responsible for the day-to-day operations of the Company Managed Entities and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Managed Entities as may be appropriateappropriate for a Chief Executive Offer and President to perform, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the CompanySP Corporate’s consultant with respect to the periodic review of the investments, borrowings Business and operations of the Company Managed Entities and any modifications to its purpose as directed by SP Corporate and consented to by the Manager and other policies established by SP Corporate and recommendations with respect theretoapproved by the Manager;
(ii) investigation, includinganalysis, without limitation, selection and implementation of business opportunities for the Investment Guidelines, in each case subject to the approval of the Board of DirectorsManaged Entities;
(iii) serving as the Company’s consultant with respect to prospective business opportunities by the selectionManaged Entities, purchaseconducting negotiations with sellers and purchasers and their respective agents and representatives and having discretion to determine if and when to proceed with any such business opportunities, monitoring and disposition including entering into, on behalf of the Company’s investmentsManaged Entities, any agreements with other Persons with respect to any such business opportunities;
(iv) serving as entering into any agreements on behalf of the Company’s consultant Managed Entities in connection with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or performance of its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsobligations under this Agreement;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company Managed Entities and at the Company’s Managed Entities’ expense, independent contractors that which provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agentcustodial, registrar administration and other services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Business;
(ixvi) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyManaged Entities;
(xvii) supervising the day-to-day operations of the Managed Entities and performing and supervising the performance of such other administrative functions necessary in the management of the Company Managed Entities as may be agreed upon by the Manager SP Corporate and the Board of DirectorsManager, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s Managed Entities’ debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company Managed Entities in connection with policy decisions to be made by SP Corporate or the Board relevant management team of Directorsa Managed Entity;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the Company’s investments Managed Entities and providing periodic reports with respect thereto to SP Corporate or the Board relevant management team of Directorsa Managed Entity, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiix) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Managed Entities may be involved or to which the Company Managed Entities may be subject arising out of the Company’s day-to-day operationsoperations of the Managed Entities;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxi) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Managed Entities to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;customary; and
(xxvixii) performing such other services as may be required from time to time for the management and other activities relating to the assets Managed Entities as SP Corporate or the relevant management team of the Company as the Board of Directors a Managed Entity shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, or direct the Managed Entities to enter into such agreements directly, for the purpose of engaging one or more parties for and on behalf of the Managed Entities to provide management and/or other services to the Managed Entities pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have businesses similar in type to the Managed Entities; provided that with respect to any agreements entered into with Affiliates of the Manager pursuant to which such Affiliates shall perform any obligations of the Manager under this Agreement and in respect of which the Manager receives the Management Fee, the Manager shall provide prompt notice of the terms of such agreement or arrangement to the Independent Directors, and further provided that any arrangement entered into directly by the Managed Entities with such other party to perform any obligations of the Manager under this Agreement shall result in a reduction of the Management Fee payable under this Agreement in the amount of the fees charged under such direct arrangement.
(d) As provided in SECTION 2(b)(v), the Manager may retain, for and on behalf, and at the sole cost and expense, of SP Corporate or the CompanyManaged Entities, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyManaged Entities and the Business. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. SP Corporate or the Managed Entities shall pay or reimburse the Manager or its Affiliates performing such services for the cost and expenses thereof; provided that such costs and reimbursements as to Affiliates of the Manager are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of SP Corporate, the Manager shall, at the sole cost and expense of SP Corporate or the Managed Entities, prepare, or cause to be prepared, any reports and other information with respect to the Business as may be reasonably requested by SP Corporate.
(f) The Manager shall prepare regular reports for SP Corporate to enable SP Corporate to review the Business and compliance with the guidelines and policies approved by SP Corporate.
(g) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not provide advice, and will have no authority to make the actual decisions, with respect to the acquisition or disposition of securities, which shall be vested in the General Partner.
(h) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Managed Entities in excess of that contained in any applicable Partnership Account or otherwise made available by the Managed Entities to be expended by the Manager hereunder or any other party with respect to the Managed Entities. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of SP Corporate under SECTION 15(a) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) Managers, members, partners, officers, employees or agents may serve as directors, officers, employees, agents, nominees or signatories for the Managed Entities, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the General Partner pursuant to the Partnership’s Governing Instruments. When executing documents or otherwise acting in such capacities for a Managed Entity, such persons shall use their respective titles in SP Corporate or such other Managed Entity, to the extent that they are an officer of SP Corporate or such other Managed Entity or shall use their respective titles in the Manager.
(j) SP Corporate shall pass any and all necessary resolutions to provide for the delegation of its duties to the Manager under this Agreement (and to facilitate the delegation of duties to the Manager in respect of the other Managed Entities), and to permit such delegation to be approved or evidenced by acts of the Board of Directors, or by any certificate duly signed by any officer of SP Corporate (or, as applicable, the officers or authorized persons of the other Managed Entities), to verify or confirm the authority of the Manager or any of its members, partners, officers, employees or agents authority to enter into agreements on behalf of and bind SP Corporate (and each Managed Entity).
(k) In performing its duties under this Section SECTION 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Managed Entities’ sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Steel Partners Holdings L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company's Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant 's con sultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company independent members of the Board of Directors (such policy guidelines as are in effect on the date hereof, as the same may be modified with such approval, the "Guidelines") and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchasecon ducting negotiations with real estate brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held real estate companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that which provide real estateestate brokerage, investment bankingbanking and leasing services, mortgage brokerage, securities brokerage, insurance, legal, accounting, transfer agent, registrar brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co- investment partners;
(vii) coordinating and supervising, on behalf of the Company and at the Company's expense, all property managers, leasing agents and developers for the administration, leasing, management and/or development of any of the Investments;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification 's status as a REIT real estate investment trust, and with the Investment Guidelines;
(xiii) counseling the Company regarding the maintenance of its status as a real estate investment trust and monitoring compliance with the various real estate investment trust qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company's investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities and other real estate- related assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance, and commitment to purchase and finance, of mortgage loans (including on a portfolio basis), real estate, real estate securities and other real estate-related assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-short- term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries real estate investment trusts and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying com plying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsreal estate investment trusts;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s 's day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the "Portfolio Management Services") on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company's portfolio of assets; the collection of information and the submission of reports pertaining to the Company's assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company's portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the "Monitoring Services") on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers' delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more property and/or asset managers for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with terms which are then customary for agreements regarding the management of assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm's-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the independent members of the Board of Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company's prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company's prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis; and provided, further, that such costs shall not be reimbursed in excess of $500,000 per annum.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser, (ii) reports and information on the Company's operations and asset performance and (iii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company's books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company's acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager's acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money ("Excess Funds") in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager's unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Company REIT and the Operating Partnership hereby appoints appoint the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to shall use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreementhereof, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, Manager at all times will be subject to the supervision and direction of the REIT's Board of Directors and will have only such functions and authority as the Board of Directors REIT may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
: (i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s 's consultant with respect to formulation of investment criteria and preparation of policy guidelines (the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment "Guidelines, in each case subject to the approval of the Board of Directors;
(iii") serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
; (xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiiii) investing and re-investing any monies moneys and securities of the Company (including in short-term investmentsinvestments pending investment in REIT Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company; (iii) investigation and advising selection of possible investment opportunities and acquisitions, property and investment analysis, market and economic surveys, on-site physical inspections, review and projection of income and construction, renovation and/or operating expenses and supervising and negotiating the Company as to its capital structure arrangement of financing; (iv) conducting negotiations with real estate brokers, owners of property and capital-raising activities;
their agents and representatives, investment bankers and owners of privately and publicly held real estate companies; (xixv) causing the Company to retain qualified accountants engaging and legal counselsupervising, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by at the Board of Directors from time to time;
(xxvi) performing Company's expense, independent contractors which provide real estate brokerage, investment banking and leasing services, mortgage brokerage and other financial services and such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstancesCompany's investments; and
(xxviivi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation negotiating on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to for the Manager all resourcessale, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and exchange or other disposition of any other information or reports with respect to of the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.'s investments; 3
Appears in 1 contract
Samples: Management and Advisory Agreement (Northstar Capital Investment Corp /Md/)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with sellers and purchasers and their respective agents, monitoring representatives and disposition of the Company’s investmentsinvestment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance of, and commitment to purchase and finance, mortgage loans (including on a portfolio basis), real estate, real estate securities, other real estate-related assets and non-real estate related assets, and in connection with the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsREITs and non-taxable REIT subsidiaries;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for the Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigating, analyzing and selecting possible investment opportunities;
(iii) serving as the Company’s consultant with respect to the selectionprospective purchases and sales of Investments, purchaseconducting negotiations with sellers and purchasers and their respective agents, monitoring representatives and disposition of the Company’s investmentsinvestment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that who provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and such other financial services and other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate-related securities, other real estate-related assets and non-real estate related assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance of, and commitment to purchase and finance, mortgage loans (including on a portfolio basis), real estate, real estate-related securities, other real estate-related assets and non-real estate-related assets, and the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in long-term asset Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsREITs and non-taxable REIT subsidiaries;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) Effective as of February 10, 2006, the Manager entered into sub-advisory agreements with each of Cypress (the “Cypress Sub-Advisory Agreement”) and Sharpridge (the “Sharpridge Sub-Advisory Agreement”), providing for the provision of services from each of Cypress and Sharpridge to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement. In the event that either the Cypress Sub-Advisory Agreement or the Sharpridge Sub-Advisory Agreement is terminated at such point in time when this Management Agreement remains in effect, within 180 days of such termination, the Manager shall be required to propose for the approval of the Independent Directors of the Company an acceptable replacement sub-advisory.
(e) To the extent that the Manager deems necessary or advisable, the Manager may, from time to time propose to retain one or more additional entities for the provision of sub-advisory services to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement; provided that any such agreement (i) shall be on terms and conditions substantially identical to the terms and conditions of this Management Agreement, (ii) shall not result in an increased Base Management Fee or expenses to the Company, and (iii) shall be approved by the Independent Directors of the Company.
(f) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(g) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(h) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(i) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(j) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(k) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Cypress Sharpridge Investments, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties. The Manager shall exercise its powers and discharge its duties hereunder in good faith.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xii) performing investigating, analyzing and supervising proposing possible acquisition and investment opportunities;
(iii) evaluating and recommending to the performance Board of administrative functions necessary in the management Directors and officers of the Company as may be agreed upon by the Manager hedging strategies and the Board of Directors, including, without limitation, the services engaging in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment hedging activities on behalf of the Company’s debts and obligations and maintenance of appropriate information technology services , consistent with such strategies, as so modified from time to perform such administrative functionstime;
(xiiv) negotiating agreements on the Company’s behalf;
(v) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiivi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvivii) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiviii) monitoring the operating performance of the Company’s investments Company and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiiix) investing and re-investing any monies and securities at the direction of audit committee of the Company (including in short-term investmentsBoard of Directors, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixiv) advising the Company with respect to obtaining financing for its operations;
(xv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide services to the Company pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that any such agreements entered into with Affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(f) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder.
(g) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business and affairs of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement Agreement, to the directions of the Executive Committee and to the supervision of, and such further limitations or parameters of the Board. Except as may be imposed from time to time byotherwise provided in this Agreement, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company reimburses the Manager for such purposes as set forth costs and expenses in accordance with Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third partiesparties and/or its Affiliates.
(b) The Manager, in its capacity as manager of the investments business and the operations affairs of the Company, at all times will be subject to the supervision and direction of the Executive Committee and the supervision of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, managing the functions Company’s activities and authority identified herein business affairs in conformity with the Company’s business objectives and delegated other policies that are approved and monitored by the Board and/or the Executive Committee.
(c) Subject to the oversight of the Board and the terms and conditions of this Agreement, the Manager hereby. The Manager will have plenary authority with respect to the management of the business and affairs of the Company and will be responsible for the day-to-day operations management of the Company and Company; provided, however, that decisions with respect to Infrastructure Assets shall require approval by the Executive Committee. The Manager will perform (or cause to be performedperformed through one or more of its Affiliates or Subsidiaries) such services and activities relating to the investments business and operations affairs of the Company as may be appropriateappropriate or otherwise mutually agreed from time to time, which may include, without limitation:
(i) forming originating, recommending opportunities to form, acquiring, structuring, coordinating and maintaining assisting with managing operations of any joint venture or Infrastructure Assets held by the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance Company and conducting all matters with the Investment Guidelines on a monthly basis, (C) reviewing joint venture partners consistent with the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategies of the Company’s investment portfolio and Company (including, for the Company’s hedging and financing strategies on a monthly basisavoidance of doubt, and (E) generally be responsible for conducting or overseeing the provision power to structure joint ventures that provide that any controlling interest of the services set forth in Company shall be forfeited upon termination of this Section 2.Agreement);
(ii) serving as an advisor to the Company’s consultant Company with respect to the establishment and periodic review of the investmentsCompany’s business objectives, borrowings financing activities and operations operations, any modifications to which will be approved by a majority of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsBoard;
(iii) serving as identifying, investigating, analyzing, and selecting possible acquisition opportunities and originating, negotiating, acquiring, consummating, documenting, monitoring, evaluating, financing, retaining, identifying potential acquirers, investigating potential dispositions, selling, negotiating for prepayment, restructuring, refinancing, hypothecating, pledging or otherwise disposing of Infrastructure Assets and other interests consistent in all material respects with the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsbusiness objectives;
(iv) serving as with respect to prospective purchases, sales, exchanges or other dispositions, conducting negotiations on the Company’s consultant behalf with respect to decisions regarding any financingssellers, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivespurchasers, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsother counterparties and, if applicable, their respective agents, advisors and representatives;
(v) advising negotiating and entering into, on the Company Company’s behalf, repurchase agreements, interest rate or currency swap agreements, hedging arrangements, financing arrangements (including bank loans, institutional sources of financing and/or one or more credit facilities), foreign exchange transactions, derivative transactions, and other agreements and instruments required or appropriate in connection with respect to incentive plans that the Company may establish for the Independent DirectorsCompany’s activities;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors contractors, advisors, consultants, attorneys, accountants, auditors, administrators, and other service providers (which may include Affiliates of the Manager) that provide real estatevarious services with respect to the Company, including, without limitation, investment banking, securities brokerage, insuranceconsulting services, legalcredit analysis, accountingrisk management services, transfer agentasset management services, registrar loan servicing, other financial, legal or accounting services, due diligence services, underwriting review services, and such all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations activities or investments acquisitions (or potential investmentsacquisitions);
(ixvii) providing executive and administrative personnel, office space and office services for the Company and as required in rendering services to the Company;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling advising the Company in connection with policy decisions to be made by the Board of Directorsor the Executive Committee;
(xiiixi) engaging one or more sub-advisors with respect to the management of the Company, including, where appropriate, Affiliates of the Manager;
(xii) evaluating and recommending to the Company Executive Committee hedging strategies and engaging in hedging activities on behalf of the Company’s behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelinesbusiness objectives;
(xivxiii) counseling advising the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in Company’s exclusion from the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from the definition of an investment company under the Investment Company Act;
(xvixiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager and its Affiliates;
(xviixv) monitoring the operating performance of the Company’s investments Infrastructure Assets and providing periodic reports with respect thereto to the Board of Directorsand the Executive Committee, including comparative information with respect to such operating performance and budgeted or projected operating resultsresults and providing advice regarding the management of joint ventures and Infrastructure Assets;
(xviiixvi) investing and re-investing reinvesting any monies moneys and securities of the Company (including investing in short-term investmentsinvestments pending deployment in other Infrastructure Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company’s shareholders and partners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain a qualified accountants independent public accounting firm and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly periodic compliance reviews with respect thereto;
(xxxviii) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s business activities, including (1) preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct and facilitating compliance with the Sxxxxxxx-Xxxxx Act of 2002 and the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act of 2010;
(xxiixx) assisting the Company in taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxi) placing, or arranging for the placement of, all orders pursuant to the Manager’s investment determinations for the Company either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer), and selecting the markets in which such orders shall be executed;
(xxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsactivities (other than with the Manager or its Affiliates), subject to such reasonable limitations or parameters as may be imposed from time to time by the Board or the Executive Committee;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board or the Executive Committee from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) serving as the Company’s advisor with respect to decisions regarding any of the Company’s financings, hedging activities or borrowings undertaken by the Company, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s business objectives, and (2) advising the Company with respect to obtaining appropriate financing for the Company’s assets (which, in accordance with applicable law and the terms and conditions of this Agreement and the Company’s Governing Agreements may include financing by the Manager or its Affiliates);
(xxvi) providing the Company with portfolio management and other related services;
(xxvii) arranging marketing materialsmaterials and other related documentation, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxvxxviii) using commercially reasonable efforts making recommendations to cause expenses incurred by or on behalf of the Company Company’s Repurchase Committee with respect to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;Company’s Tender Offers; and
(xxvixxix) performing such other services as may be required from time to time for in connection with the management of the business and other activities relating to the assets affairs of the Company and its activities as the Board of Directors or the Executive Committee shall reasonably request or and/or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons Persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company, which may include Affiliates of the Manager; provided that any such services may be provided by Affiliates only to the extent (i) such services are on arm’s length terms and competitive market rates in relation to terms that are then customary for agreements regarding the provision of such services to companies that have assets similar in type, quality and value to the assets of the Company and its Subsidiaries, (ii) the specific type of transaction is expressly provided for under this Agreement or the Company’s Governing Agreements (including the payment of Management Fees, Monitoring Fees, Transaction Fees, Regulated Broker Dealer Fees, Loan Servicing Fees, Service Costs, Asset Leasing Fees, Capstone Fees and Break-Up Fees) or (iii) such services are approved by a majority of the Independent Directors. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall keep the Board and the Executive Committee reasonably informed on a periodic basis as to any services provided by Affiliates of the Manager.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s and its Subsidiaries’ status as an entity entities excluded from investment company status under the Investment Company Act, Act or (iiiii) would materially violate the Conduct Policies, any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed and its Subsidiaries or that would otherwise not be permitted by the Company’s applicable Governing InstrumentsAgreements. If the Manager is ordered to take any action by the Board of DirectorsExecutive Committee, the Manager shall seek to promptly notify the Board of Directors Executive Committee if it is the Manager’s reasonable judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing InstrumentsAgreements. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, the Executive Committee or the Company’s stockholders shareholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company (including the Board of Directorsand the Executive Committee) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqCode, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If .
(g) As frequently as the Manager is not able to provide a servicemay deem reasonably necessary or advisable, or in at the reasonable judgment of the Manager it is not prudent to provide a service, without the approval direction of the Board of Directorsor the Executive Committee, as applicable, then the Manager shall prepare, or, at the sole cost and expense of the Company, cause to be excused from providing such service prepared, (i) reports and other information on the Company’s operations and (ii) other information relating to any proposed or consummated Infrastructure Asset as may be reasonably requested by the Company.
(h) The Manager shall prepare, or, at the sole cost and expense of the Company, cause to be prepared, all periodic reports and financial statements with respect to the Company reasonably required by the Board or the Executive Committee in order for the Company to comply with its Governing Agreements, or any other materials required to be filed with any governmental body or agency, including but not limited to the SEC, and shall not prepare, or, at the sole cost and expense of the Company, cause to be in breach prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of this Agreementthe Company’s books of account by a nationally recognized independent accounting firm.
(i) until The Manager shall prepare, or, at the applicable approval has been obtainedsole cost and expense to the Company, cause to be prepared, regular reports for the Board or the Executive Committee to enable the Board or the Executive Committee to review the Company’s acquisitions, portfolio composition and characteristics, performance, asset performance and consistency with the Company’s business objectives, and policies approved by the Board.
Appears in 1 contract
Samples: Management Agreement (KKR Infrastructure Conglomerate LLC)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review and recommendation of criteria and parameters for the investments, borrowings and operations of the Company and other policies and recommendations with respect theretoCompany, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising performing such services in administering the Company with respect to Company’s equity incentive plans that as the Company Board of Directors may establish for delegate to the Independent DirectorsManager;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity of the Company’s incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (American Capital Agency Corp)
Appointment and Duties of the Manager. (a) The Company and each of the Subsidiaries hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, the Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The parties acknowledge that (i) the Manager is a special purpose vehicle formed for the principal purpose of serving as the investment manager of the Company; (ii) the Manager is an affiliate of Apollo Global Real Estate Management, L.P. (“Apollo Global Real Estate Management”), an investment adviser that is registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”); (iii) the Manager performs its services for the Company through the personnel and facilities of Apollo Global Real Estate Management; (iv) the Manager has no, and will have no, employees or other persons acting on its behalf other than (A) officers, partners and employees of Apollo Global Real Estate Management, or (B) other persons who are subject to the supervision and control of Apollo Global Real Estate Management; (v) all of the investment advisory activities of the Manager are subject to the Advisers Act and the rules thereunder; and (vi) the Manager relies upon Apollo Global Real Estate Management’s registration under the Advisers Act in not registering itself.
(c) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the CompanyCompany and the Subsidiaries, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Apollo Commercial Real Estate Finance, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare, at the sole cost and expense of the Company, regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties, including Affiliates of the Manager.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(viivi) providing the Company with portfolio management;
(viiivii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixviii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification and maintenance of the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding its qualification and the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixv) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixvi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of of
(xviii) dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct or by the OTC Bulletin Board or the requirements of such other stock exchange as the Shares may be listed on following the date hereof as applicable;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.the
Appears in 1 contract
Samples: Management Agreement (Bimini Capital Management, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision and direction of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. In performing its duties hereunder, the Manager also herby agrees to use its commercially reasonable efforts to comply, and to cause the personnel providing services to the Company to comply, with the Conflicts of Interest Policy, the Investment Guidelines and the Company’s Investment Committee Charter. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, including the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investment criteria and parameters for investments, borrowings and operations (including the Investment Guidelines and Conflicts of Interest Policy, any modifications to which shall be approved by a majority of the Company Independent Directors) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the thereto for approval of by the Board of Directors;
(ii) making available to the Company the Manager’s knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets and real estate operating companies in the healthcare industry and otherwise;
(iii) serving as the Company’s consultant with respect to the identification, investigation, evaluation, analysis, selection, purchase, origination, negotiation, structuring, monitoring and disposition of the Company’s investments, including the accumulation of assets for securitization;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, securitizations, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing warehouse or other financings for its investments;
investments and (v3) advising the Company with respect to incentive plans that and structuring long-term financing vehicles for the Company’s investments, and advising the Company may establish with respect to offering and selling securities publicly or privately in connection with any such structured financing;
(v) serving as the Company’s consultant with respect to arranging for the Independent Directorsissuance of mortgage backed securities from pools of mortgage loans or mortgage backed securities owned by the Company;
(vi) purchasing representing and financing investments making recommendations to the Company in connection with the purchase and finance and commitment to purchase and finance investments;
(vii) with respect to any prospective investment by the Company and any sale, exchange or other disposition of any investment by the Company, conducting negotiations on behalf of the CompanyCompany with real estate brokers, sellers and purchasers and their respective agents, representatives and investment bankers and owners of privately and publicly held real estate companies;
(viiviii) providing the Company with portfolio management, asset servicing and loan servicing, including enforcing rights, exercising remedies, granting consents, and taking other actions on behalf of the Company in respect of the Company’s investments;
(viiiix) conducting periodic on-site visits to properties to inspect the physical condition of the properties and to evaluate the performance of a tenant or operator of its duties;
(x) reviewing, analyzing and commenting upon the operating budgets, capital budgets and leasing plans of properties;
(xi) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, mortgage brokerage, securities brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting, transfer agent, registrar registrar, leasing, master servicing, special servicing, due diligence and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixxii) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(xiii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxiv) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, including the services in respect of any equity of the Company’s incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xixv) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixvi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixvii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxviii) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations Regulations promulgated thereunder;
(xvxix) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixx) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixxi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixxii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxxiii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxxiv) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixxv) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or and the Securities ActAct or by the NYSE;
(xxiixxvi) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxvii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsoperations other than with the Manager or its Affiliates;
(xxivxxviii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxix) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxx) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxxi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers (including title insurers), surveyors, engineering, environmental and firms referred to in Section 7(b) hereof seismic consultants, insurance consultants and brokers, public relations and marketing consultants, information technology consultants, investment relations advisers, securities brokers, mortgage brokers, transfer agents, registrars, financial printers, developers, investment banks, financial advisors, internal audit service providers, banks and other lenders, consultants, agents, contractors, vendors, advisors and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, including accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall use commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded exempted from investment company status under the Investment Company Act, or (iiiii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of Manager, its Affiliates (including American Capital) directors, officers, stockholders and employees shall not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager Manager, its directors, officers, stockholders or any of its Affiliates, employees except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, including all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it in writing including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigating, analyzing and selecting possible Investment opportunities and originating, acquiring, financing, retaining, selling, negotiating for prepayment, restructuring or disposing of Company Investments consistent with the Guidelines;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification as a REIT and the maintenance of such status, monitoring the Company’s compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from status as an investment company under the Investment Company Act;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on market terms and conditions and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations business and affairs of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement Agreement, to the directions of the Executive Committee and to the supervision of, and such further limitations or parameters of the Board. Except as may be imposed from time to time byotherwise provided in this Agreement, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company reimburses the Manager for such purposes as set forth costs and expenses in accordance with Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third partiesparties and/or its Affiliates.
(b) The Manager, in its capacity as manager of the investments business and the operations affairs of the Company, at all times will be subject to the supervision and direction of the Executive Committee and the supervision of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, managing the functions Company’s activities and authority identified herein business affairs in conformity with the Company’s business objectives and delegated other policies that are approved and monitored by the Board and/or the Executive Committee.
(c) Subject to the oversight of the Board and the terms and conditions of this Agreement, the Manager hereby. The Manager will have plenary authority with respect to the management of the business and affairs of the Company and will be responsible for the day-to-day operations management of the Company and Company; provided, however, that decisions with respect to Infrastructure Assets shall require approval by the Executive Committee. The Manager will perform (or cause to be performedperformed through one or more of its Affiliates or Subsidiaries) such services and activities relating to the investments business and operations affairs of the Company as may be appropriateappropriate or otherwise mutually agreed from time to time, which may include, without limitation:
(i) forming originating, recommending opportunities to form, acquiring, structuring, coordinating and maintaining assisting with managing operations of any joint venture or Infrastructure Assets held by the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance Company and conducting all matters with the Investment Guidelines on a monthly basis, (C) reviewing joint venture partners consistent with the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategies of the Company’s investment portfolio and Company (including, for the Company’s hedging and financing strategies on a monthly basisavoidance of doubt, and (E) generally be responsible for conducting or overseeing the provision power to structure joint ventures that provide that any controlling interest of the services set forth in Company shall be forfeited upon termination of this Section 2.Agreement);
(ii) serving as an advisor to the Company’s consultant Company with respect to the establishment and periodic review of the investmentsCompany’s business objectives, borrowings financing activities and operations operations, any modifications to which will be approved by a majority of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsBoard;
(iii) serving as identifying, investigating, analyzing, and selecting possible acquisition opportunities and originating, negotiating, acquiring, consummating, documenting, monitoring, evaluating, financing, retaining, identifying potential acquirers, investigating potential dispositions, selling, negotiating for prepayment, restructuring, refinancing, hypothecating, pledging or otherwise disposing of Infrastructure Assets and other interests consistent in all material respects with the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsbusiness objectives;
(iv) serving as with respect to prospective purchases, sales, exchanges or other dispositions, conducting negotiations on the Company’s consultant behalf with respect to decisions regarding any financingssellers, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivespurchasers, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsother counterparties and, if applicable, their respective agents, advisors and representatives;
(v) advising negotiating and entering into, on the Company Company’s behalf, repurchase agreements, interest rate or currency swap agreements, hedging arrangements, financing arrangements (including bank loans, institutional sources of financing and/or one or more credit facilities), foreign exchange transactions, derivative transactions, and other agreements and instruments required or appropriate in connection with respect to incentive plans that the Company may establish for the Independent DirectorsCompany’s activities;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on the Company’s behalf of the Company and at the Company’s expense, independent contractors contractors, advisors, consultants, attorneys, accountants, auditors, administrators, and other service providers (which may include Affiliates of the Manager) that provide real estatevarious services with respect to the Company, including, without limitation, investment banking, securities brokerage, insuranceconsulting services, legalcredit analysis, accountingrisk management services, transfer agentasset management services, registrar loan servicing, other financial, legal or accounting services, due diligence services, underwriting review services, and such all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations activities or investments acquisitions (or potential investmentsacquisitions);
(ixvii) providing executive and administrative personnel, office space and office services for the Company and as required in rendering services to the Company;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company’s management of the Company as may be agreed upon by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on the Company’s behalf of the Company with the holders of any of the Company’s equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling advising the Company in connection with policy decisions to be made by the Board of Directorsor the Executive Committee;
(xiiixi) engaging one or more sub-managers with respect to the management of the Company, including, where appropriate, Affiliates of the Manager;
(xii) evaluating and recommending to the Company Executive Committee hedging strategies and engaging in hedging activities on behalf of the Company’s behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelinesbusiness objectives;
(xivxiii) counseling advising the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in Company’s exclusion from the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from the definition of an investment company under the Investment Company Act;
(xvixiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager and its Affiliates;
(xviixv) monitoring the operating performance of the Company’s investments Infrastructure Assets and providing periodic reports with respect thereto to the Board of Directorsand the Executive Committee, including comparative information with respect to such operating performance and budgeted or projected operating resultsresults and providing advice regarding the management of joint ventures and Infrastructure Assets;
(xviiixvi) investing and re-investing deploying any monies moneys and securities of the Company (including in holding short-term investmentsinterests pending deployment in other Infrastructure Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company’s shareholders and partners) and advising the Company as to its the Company’s capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain a qualified accountants independent public accounting firm and legal counsel, as applicable, to (i) assist in developing appropriate accounting proceduresprocedures and systems, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly periodic compliance reviews with respect thereto;
(xxxviii) causing assisting the Company to qualify in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its the Company’s business activities, including (1) preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities ActAct and (2) facilitating compliance with the Xxxxxxxx-Xxxxx Act of 2002 and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010;
(xxiixx) assisting the Company in taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixxi) placing, or arranging for the placement of, all orders pursuant to the Manager’s acquisition determinations for the Company either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer), and selecting the markets in which such orders shall be executed;
(xxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsactivities (other than with the Manager or its Affiliates), subject to such reasonable limitations or parameters as may be imposed from time to time by the Board or the Executive Committee;
(xxiii) using commercially reasonable efforts to cause expenses incurred by the Company or on the Company’s behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board or the Executive Committee from time to time;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) serving as the Company’s advisor with respect to decisions regarding any of the Company’s financings, hedging activities or borrowings undertaken by the Company, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s business objectives, and (2) advising the Company with respect to obtaining appropriate financing for the Company’s assets (which, in accordance with applicable law and the terms and conditions of this Agreement and the Company’s Governing Agreements may include financing by the Manager or its Affiliates);
(xxvi) providing the Company with portfolio management and other related services;
(xxvii) arranging marketing materialsmaterials and other related documentation, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company’s business;
(xxvxxviii) using commercially reasonable efforts making recommendations to cause expenses incurred by the Company’s Repurchase Committee and/or the Board, as applicable, with respect to repurchases under the Company’s Share Repurchase Plan or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;Tender Offers; and
(xxvixxix) performing such other services as may be required from time to time for in connection with the management of the business and other activities relating to the assets affairs of the Company and its activities as the Board of Directors or the Executive Committee shall reasonably request or and/or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons Persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company, which may include Affiliates of the Manager; provided that any such services may be provided by Affiliates only to the extent (i) such services are on arm’s length terms and competitive market rates in relation to terms that are then customary for agreements regarding the provision of such services to companies that have assets similar in type, quality and value to the assets of the Company and its Subsidiaries, (ii) the specific type of transaction is expressly provided for under this Agreement or the Company’s Governing Agreements (including the payment of Management Fees, Monitoring Fees, Transaction Fees, Regulated Broker Dealer Fees, Loan Servicing Fees, Service Costs, Asset Leasing Fees, Capstone Fees and Break-Up Fees) or (iii) such services are approved by a majority of the Independent Directors. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall keep the Board and the Executive Committee reasonably informed on a periodic basis as to any services provided by Affiliates of the Manager.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s and its Subsidiaries’ status as an entity entities excluded from investment company status under the Investment Company Act, Act or (iiiii) would materially violate the Conduct Policies, any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed and its Subsidiaries or that would otherwise not be permitted by the Company’s applicable Governing InstrumentsAgreements. If the Manager is ordered to take any action by the Board of DirectorsExecutive Committee, the Manager shall seek to promptly notify the Board of Directors Executive Committee if it is the Manager’s reasonable judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Governing InstrumentsAgreements. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of DirectorsBoard, the Executive Committee or the Company’s stockholders shareholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(ef) The Company (including the Board of Directorsand the Executive Committee) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqCode, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If .
(g) As frequently as the Manager is not able to provide a servicemay deem reasonably necessary or advisable, or in at the reasonable judgment of the Manager it is not prudent to provide a service, without the approval direction of the Board of Directorsor the Executive Committee, as applicable, then the Manager shall prepare, or, at the sole cost and expense of the Company, cause to be excused from providing such service prepared, (i) reports and other information on the Company’s operations and (ii) other information relating to any proposed or consummated acquisition as may be reasonably requested by the Company.
(h) The Manager shall prepare, or, at the sole cost and expense of the Company, cause to be prepared, all periodic reports and financial statements with respect to the Company reasonably required by the Board or the Executive Committee in order for the Company to comply with its Governing Agreements, or any other materials required to be filed with any governmental body or agency, including but not limited to the SEC, and shall not prepare, or, at the sole cost and expense of the Company, cause to be in breach prepared, all materials and data necessary to complete such reports and other materials, including, without limitation, an annual audit of this Agreementthe Company’s books of account by a nationally recognized independent accounting firm.
(i) until The Manager shall prepare, or, at the applicable approval has been obtainedsole cost and expense to the Company, cause to be prepared, regular reports for the Board or the Executive Committee to enable the Board or the Executive Committee to review the Company’s acquisitions, portfolio composition and characteristics, performance, asset performance and consistency with the Company’s business objectives, and policies approved by the Board.
Appears in 1 contract
Samples: Management Agreement (KKR Infrastructure Conglomerate LLC)
Appointment and Duties of the Manager. (a) The Company CDS hereby appoints the Manager to manage and administer the investments Investments and the day-to-day operations of the Company and its SubsidiariesCDS Entities, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of DirectorsAgreement. The Manager hereby agrees to will use its commercially reasonable efforts to provide the services contemplated hereunder and otherwise to perform each of the its duties set forth herein, provided that funds are made or caused to be made available by the Company for such purposes CDS as set forth in Section 7 hereof8. The appointment CDS shall not appoint any other Person except the Manager to perform the duties and carry out the responsibilities of the Manager shall be exclusive to the Managerdescribed herein, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of as may otherwise be permitted by this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in performance of its capacity as manager of the investments and the operations of the Companyduties hereunder, at all times will be subject to act in a manner that is consistent with the supervision and direction provisions of the Board Governing Instruments of Directors each CDS Entity, and will have only such functions use commercially reasonable efforts to perform its duties hereunder, including to present to CDS potential investment opportunities and authority as to manage CDS’s business affairs in conformity with the Board investment parameters and other policies that are established by CDS. The Manager hereby acknowledges and agrees that any proposed changes to CDS’s investment strategy shall require the prior written approval of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to CDS. CDS shall notify the Manager hereby. promptly of any amended, restated or supplemented investment strategies from time to time.
(c) The Manager will be responsible for the day-to-day operations of the Company CDS Entities and will perform (or cause to be performed) such services and activities relating to the investments their respective Investments and operations of the Company Real Estate Assets, as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines modifications to the Board investment strategy of DirectorsCDS, (B) periodically reviewing the Company’s investment CDS Investment portfolio for compliance with the Investment Guidelines on a monthly basisits investment strategy and reporting its findings to CDS, (C) periodically reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing and reporting to CDS regarding the diversification of the Company’s investment CDS Investment portfolio and the Company’s hedging and financing strategies on a monthly basisstrategies, and (ED) generally be responsible for conducting or overseeing the provision of the services and activities set forth in this Section 2.Agreement;
(ii) serving as the Company’s consultant investigating, analyzing, selecting, conducting due diligence with respect to, negotiating the terms and conditions of (including negotiating the forms of definitive agreements), arranging financing for and recommending to the periodic review of the investmentsCDS, borrowings and operations of the Company and other policies and recommendations possible Investment Transactions consistent with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsCDS’s investment strategy;
(iii) serving as the Company’s consultant with respect to prospective Investment Transactions and Financing Transactions, conducting negotiations (including negotiation of definitive agreements) with sellers, purchasers, prospective Joint Venture or merger candidates, lenders and other financing sources and their respective agents and representatives, and, if applicable, closing the selection, purchase, monitoring Investment Transactions and disposition of the Company’s investmentsFinancing Transactions as may be approved by CDS;
(iv) serving effecting any private placement of interests in Investments, as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken may be approved by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsCDS;
(v) advising delivering to or maintaining on behalf of CDS copies of all appraisals or marketing reports obtained in connection with the Company with respect to incentive plans that the Company Real Estate Assets as may establish for the Independent Directorsbe desired or required by CDS;
(vi) purchasing negotiating, within the discretionary limits and financing investments on behalf authority granted by CDS in this Agreement, repurchase agreements, agreements relating to borrowings under programs established by the U.S. Government and other agreements and instruments required to conduct the business of the CompanyCDS Entities;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf supervising Affiliates of the Company Manager and at the Company’s expense, independent contractors approved by CDS that provide real estate, investment banking, securities brokerage, insuranceequity capital, legalmortgage brokerage, accountingreal estate brokerage services, transfer agentother financial services, registrar due diligence services, underwriting review services, legal and such accounting services, professional services, including engineering and architectural services, and all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations Real Estate Assets, CDS Entities’ operations, Investments, Investment Transactions or investments Financing Transactions;
(or potential investments)viii) reserved;
(ix) as directed by CDS, coordinating and managing operations of any Joint Venture or co-investment interests held by the CDS Entities and conducting all matters with the Joint Venture or co-investment partners;
(x) providing executive executive, management, and administrative personnel, office space and office services required in rendering services to the Companyhereunder;
(xxi) negotiating leases and service contracts in connection with the Investments and administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directorsfunctions, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, including the collection of revenues and the payment of the Company’s debts and obligations obligations, and maintenance of appropriate information technology computer services to perform such administrative functions;
(xixii) as directed by CDS, communicating on behalf of the Company with the holders of any equity or debt securities of the Company CDS as required to satisfy the reporting and other requirements of any governmental bodies body or agencies agency or trading exchanges or markets market and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and and, as directed by CDS, engaging in hedging activities on behalf of within the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT discretionary limits and with the Investment Guidelinesauthority specifically granted by CDS within its investment strategy;
(xiv) counseling the Company providing counsel regarding the maintenance of its potential qualification as a REIT and and, if implemented, thereafter monitoring compliance with the various REIT qualification tests and other related rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations, and using commercially reasonable efforts to cause the applicable CDS Entities to continue to qualify for taxation as a REIT;
(xv) counseling providing counsel regarding exemptions from the Company regarding the maintenance status of its exemption from status as an investment company required to register under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemption and using commercially reasonable efforts to cause the applicable CDS Entities to maintain such exemption;
(xvi) furnishing reports and statistical and economic research regarding Investments and potential Investments, as well as disclosing any potential conflicts of interest involving the Manager or any of its Affiliates not already disclosed in public filings made pursuant to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the ManagerSEC regulations;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directorsthereto, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing providing advice with respect to equity and re-investing any monies debt capitalization and securities of financing strategies related to the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiesInvestments;
(xix) causing assisting the Company CDS Entities to retain qualified accountants and legal counsel, as applicable, to (i) assist advise in developing appropriate accounting procedures and systems, internal controls and other compliance procedures, compliance procedures to provide sound tax and testing systems with respect legal advice and to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly annual compliance reviews with respect thereto;
(xx) causing assisting the Company to qualify CDS Entities in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company CDS Entities in complying with all laws and regulatory requirements applicable to the Company in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all maintaining reports and documents, if any, documents to the extent required under the Exchange Act or the Securities Actby applicable law;
(xxii) assisting the CDS Entities in taking all necessary actions to enable the Company and any Subsidiaries action to make required tax filings and reports, including soliciting stockholders for required information to reports in accordance with the extent necessary under the Code and U.S. Treasury regulations applicable to REITsCode;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company a CDS Entity may be involved involved, or to which the Company any CDS Entity or Real Estate Asset or other interest may be subject subject, arising out of the CompanyCDS Entity’s day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by CDS;
(xxiv) using commercially reasonable efforts to cause expenses incurred on behalf of any CDS Entity to be commercially reasonable or usual and customary and within any budgeted parameters or expense guidelines proposed by the Manager and approved by CDS from time to time;
(xxv) advising on the appropriateness of leverage ratios, cash positions and long-term capital reserves;
(xxvi) providing portfolio management services;
(xxvii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the CompanyCDS Entities’ businesses;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxviii) performing such other services as may be required from time to time for the management and other activities relating to the CDS assets of the Company and business as the Board of Directors shall reasonably request requested by CDS or as the Manager shall deem appropriate under the particular circumstances; and
(xxviixxix) using commercially reasonable efforts providing or causing to cause be provided all due diligence, design, development, construction management, property management, asset management, analytical, accounting, financial, and other services necessary for the Company to comply with all applicable lawsdevelopment and operation of the Real Estate Assets.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, behalf of the CompanyCDS, such services of the persons and firms referred to in Section 7(b) hereof Persons as the Manager deems necessary or advisable for the provision of services referred to in Section 8 in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseCDS.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelinesinvestment strategy of CDS, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s status CDS Entity as an entity excluded from investment company status under the Investment Company Act, or (iii) would conflict with or violate (A) any law, rule or regulation of any governmental body or agency having jurisdiction over the Company any CDS Entity, or of (B) any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s applicable Governing Instruments. If the The Manager is ordered may proceed with taking an action described above if expressly instructed to take any action do so by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing InstrumentsCDS. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Companyany CDS Entity, the Board of Directorsany Joint Venture, or the Company’s stockholders members or other holders of equity interests in any CDS Entity, for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of 9. In performing its duties under this AgreementSection 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including accountants, legal counsel and other professional service providers).
(ef) Without limiting any other reporting requirement, Manager shall notify CDS of all contemplated Investment Transactions not less than 30 days prior to the anticipated date of completion of the transaction. The Company Manager shall seek and obtain CDS prior approval of any Investment Transaction, regardless of whether it meets the investment strategy of CDS. In all transactions requiring approval by CDS, the Manager will deliver to CDS all documents and other information reasonably required to evaluate properly the proposed transaction.
(including the Board of Directorsg) agrees to CDS will take or cause all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, including all steps reasonably necessary to allow the Manager and its Affiliates to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNASDAQ regulations, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to CDS will use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its legal obligations hereunder.
(h) As frequently as the Manager may deem necessary or advisable, or at the direction of CDS, the Manager shall prepare (or cause to be prepared) reports and other information relating to any proposed Investment.
(i) The Manager shall prepare (or cause to be prepared) all reports, financial or otherwise, reasonably required by CDS in order for the CDS Entities to comply with their respective Governing Instruments or as otherwise reasonably requested by CDS, including its obligations to deliver an annual audit or review of any CDS Entity consolidated financial statements by a nationally recognized independent accounting firm.
(j) The Manager shall prepare (or cause to be prepared) regular reports for CDS to enable it to review CDS Entity acquisitions, Investment portfolio composition and any other information or reports characteristics, credit quality, performance and compliance with respect the investment strategy and policies approved by it from time to the Company. If the Manager is not able to provide a servicetime.
(k) Officers, or in the reasonable judgment employees and agents of the Manager it and its Affiliates may serve as directors, officers, agents, nominees or signatories for any CDS Entity, but only to the extent permitted by their respective Governing Instruments, or by any resolutions duly adopted by the CDS Entity. When executing documents or otherwise acting in such capacities for any CDS Entity, such Persons shall indicate they are executing or acting on behalf of such CDS Entity. Without limiting the foregoing, while this Agreement is not prudent in effect, the Manager will establish an executive management team and such other positions, along with appropriate support personnel, to provide a servicethe management services to be provided by the Manager to the CDS Entities hereunder, without who shall devote such of their time to the approval management of the Board Investments and consideration of Directorsthe investment strategy and policies and day-to-day operations of the CDS Entities, as applicablemay be necessary and appropriate, then commensurate with the level of activity of CDS from time to time.
(l) The Manager, if directed by CDS and at CDS’s expense, shall obtain and maintain reasonable and customary “errors and omissions” insurance coverage and other customary insurance coverage in respect to its obligations and activities under, or pursuant to, this Agreement, naming the CDS Entities as additional insureds.
(m) The Manager shall provide such internal audit, compliance and control services as may be required for the Manager and its Affiliates to comply with applicable law (including the Securities Act and Exchange Act), regulations (including SEC regulations) and the rules and requirements of NASDAQ and as otherwise reasonably requested by CDS from time to time.
(n) If required by applicable statute in the performance of this Agreement, the Manager shall maintain any required registration of the Manager or any Affiliate with the SEC under the Investment Advisers Act of 1940, as amended, or with any state securities authority in any state in which the Manager or its Affiliate is required to be excused from providing registered as an investment advisor under applicable state securities laws. The Manager does not currently expect such service (and shall not be in breach of this Agreement) until the applicable approval has been obtaineda registration is required.
Appears in 1 contract
Samples: Master Asset Management Agreement (Comstock Holding Companies, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.. 577510.02-Wilmington Server 1A MSW -
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directorsinvestment opportunities;
(iii) serving as the Company’s consultant with respect to prospective Investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estateservices relating to the Investments, including, but not limited to, investment banking, legal advisory, tax advisory, accounting advisory, securities brokerage, insurancereal estate advisory and brokerage, legal, accounting, transfer agent, registrar and such other financial and consulting services as may be required relating the Manager determines from time to the Company’s operations or investments (or potential investments)time is advisable;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;; 577510.02-Wilmington Server 1A MSW -
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors modifications to the hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvixiii) furnishing reports assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and statistical and economic research making available to the Company regarding the activities its knowledge and services performed for the Company or experience with respect to its Subsidiaries, if any, by the Managertarget assets;
(xviixiv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such assets;
(xv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;; 577510.02-Wilmington Server 1A MSW -
(xxiixx) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITsprovisions of the Code;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates (subject to Section 2(d) below), for the purpose of engaging one or more asset managers for and on behalf, and at the sole cost and expense, of the Company to provide operations management, asset management, personnel management, development and/or similar services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) with respect to the Investments, pursuant to management agreement(s) with terms which are then customary for agreements regarding the management or servicing of assets similar in type, quality and value to the assets of the Company; provided, that (i) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (ii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval. 577510.02-Wilmington Server 1A MSW -
(d) Transactions between the Manager and any affiliate (including, but not limited to, any amendments to this Agreement or any issuance by the Company of equity to existing shareholders as of the date of this Agreement that would change the relative equity ownership percentages among such existing shareholders) must be approved in advance by the majority of the Independent Directors and be determined by such Independent Directors to be in the best interests of the Company. If any affiliate transaction involving the acquisition of an asset from the Manager or an affiliate of the Manager is not approved in advance by a majority of the Independent Directors, then the Manager may be required to repurchase the asset at the purchase price (plus closing costs) to the Company.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(h) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, performance and compliance with policies approved by the Board of Directors.
(i) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this 577510.02-Wilmington Server 1A MSW - Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Restructuring Support Agreement (Newcastle Investment Corp)
Appointment and Duties of the Manager. (a) The Company Company, New Parent and each Subsidiary party hereto hereby appoints the Manager to manage the investments assets and day-to-day operations of the Company Company, New Parent, and its Subsidiaries, their Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties. For the avoidance of doubt, and notwithstanding anything to the contrary herein, each of the Company, New Parent, and each Subsidiary shall receive from the Manager only such management services described in this Section 2 as relate to the particular assets and operations of the Company, New Parent, or such Subsidiary, respectively. Accordingly, for example, the services received by the Company shall include only those services as relate to the operations required for the Company to be a public company with securities traded on a national securities exchange, an obligor under the Company’s outstanding indebtedness, and a holding company for the Company’s businesses and investments and shall not include services related to the business operations of any Subsidiary (which services shall be provided by Manager directly to such Subsidiary under this Agreement).
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, New Parent and their Subsidiaries, at all times will be subject to the supervision and direction of the applicable Board of Directors Directors, and will have only such functions and authority as the Board of Directors Company, New Parent and each Subsidiary may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Company, New Parent and the Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments their assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s its consultant with respect to the periodic review of the investmentsacquisition criteria and parameters for Acquisitions, borrowings borrowings, financing transactions, and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsAcquisition opportunities;
(iii) serving as the Company’s consultant with respect to the selectionprospective Acquisitions and dispositions of assets, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving engaging and supervising independent contractors that provide it or its assets services, including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, due diligence, accounting advisory, securities brokerage, brokerage, and other financial, brokerage and consulting services as the Company’s consultant with respect Manager determines from time to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that time is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsadvisable;
(v) advising negotiating the Company with respect to incentive plans that the Company may establish for the Independent Directorssale, exchange or other disposition of any asset;
(vi) purchasing coordinating and financing investments on behalf managing operations of the Companyany joint venture or co-investment interests held by it and conducting all matters with joint venture or co-investment partners;
(vii) providing coordinating and supervising, all matters related to it or any of its assets, including the Company leasing and/or sale and management of such assets and retaining agents, managers or other advisors in connection with portfolio managementsuch coordination and supervision;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Companyhereunder;
(xix) administering its day-to-day operations and performing and supervising the performance of such other administrative functions necessary in the its management of the Company as may be agreed upon by the Manager and the applicable Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s its debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the past, current and prospective holders of any of its equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the relevant Board of Directors;
(xiiixii) evaluating and recommending to the Company relevant Board of Directors modifications to any hedging strategies ancillary to the Company’s primary business as a holding and operating company, in effect on the date hereof and engaging in hedging activities on behalf of the Companyactivities, consistent with such strategies, as so modified in effect from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting in developing criteria that are specifically tailored to its investment objectives and making available to it the Manager’s knowledge and experience with respect to its target assets;
(xv) representing and making recommendations in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports monitoring its and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the assets’ operating performance of the Company’s investments and providing periodic reports with respect thereto to the relevant Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies of its moneys and securities of to support the Company’s business objectives as a holding and operating Company (including investing in short-term investments, pending the making of Acquisitions, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders shareholders and partners of the Company) and advising the Company it as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company it to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company it to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xx) taking all necessary actions to enable it to make required tax filings and reports, including soliciting shareholders for required information to the extent provided by the provisions of the Code;
(xxi) assisting the Company it in complying with all regulatory requirements applicable to the Company thereto in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company it may be involved or to which the Company it may be subject arising out of the Company’s its day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the applicable Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company it to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the applicable Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the its assets of the Company as the applicable Board of Directors and Manager shall reasonably request agree from time to time or as the Manager shall deem appropriate under the particular circumstances; and;
(xxviixxv) using commercially reasonable efforts to cause the Company it to comply with all applicable laws; and
(xxvi) traveling in connection with the performance of any services or activities relating to it and its assets, operations, Acquisitions or investment analysis. Without limiting the foregoing, the Manager will perform management services (the “Management Services”) with respect to Acquisitions. Such services will include, but not be limited to, consulting on the purchase and sale of, and other investment opportunities in connection with, the Company’s, New Parent’s or the Subsidiaries’ portfolio of assets; the collection of information and the submission of reports pertaining to their assets, general economic conditions; periodic review and evaluation of the performance of their portfolio of assets; acting as their liaison between banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to the management of the Company’s business. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company, New Parent and the Subsidiaries with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates, including to provide the services above, provided, that any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than could be obtained from a third party on an arm’s length basis and (B) to the extent the same do not fall within policies approved by the relevant Board of Directors, approved by a majority of the Independent Directors to the extent required by any such Board policy.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, New Parent and the Subsidiaries, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, asset managers, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company, New Parent and the Subsidiaries. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents or any affiliate of the Manager). The Company, New Parent and the Subsidiaries, as applicable, shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s‑length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the relevant Board of Directors, the Manager shall, at the sole cost and expense of the Company, New Parent and the Subsidiaries, prepare, or cause to be prepared, with respect to any investment, (i) reports and information on operations and asset performance and (ii) other information reasonably requested.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, New Parent and the Subsidiaries, all reports, financial or otherwise, reasonably required by the applicable Board of Directors in order for such entity to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of such entity’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review Acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company, New Parent or any Subsidiary to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (Fortress Transportation & Infrastructure Investors LLC)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for the Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors
(ii) investigating, analyzing and selecting possible investment opportunities;
(iii) serving as the Company’s consultant with respect to the selectionprospective purchases and sales of Investments, purchaseconducting negotiations with sellers and purchasers and their respective agents, monitoring representatives and disposition of the Company’s investmentsinvestment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate-related securities, other real estate-related assets and non-real estate related assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance of, and commitment to purchase and finance, mortgage loans (including on a portfolio basis), real estate, real estate-related securities, other real estate-related assets and non-real estate-related assets, and the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in long-term asset Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixx) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixxi) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITsREITs and non-taxable REIT subsidiaries;
(xxiiixxii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) Effective as of the date hereof, the Manager shall enter into sub-advisory agreements with each of Cypress (the “Cypress Sub-Advisory Agreement”) and Sharpridge (the “Sharpridge Sub-Advisory Agreement”), providing for the provision of services from each of Cypress and Sharpridge to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement. In the event that either the Cypress Sub-Advisory Agreement or the Sharpridge Sub-Advisory Agreement is terminated at such point in time when this Management Agreement remains in effect, within 180 days of such termination, the Manager shall be required to propose for the approval of the Independent Directors of the Company an acceptable replacement sub-advisor.
(e) To the extent that the Manager deems necessary or advisable, the Manager may, from time to time, propose to retain one or more additional entities for the provision of sub-advisory services to the Manager in order to enable the Manager to provide the services to the Company specified by this Management Agreement; provided that any such agreement (i) shall be on terms and conditions substantially identical to the terms and conditions of this Management Agreement, (ii) shall not result in an increased Base Management Fee or expenses to the Company, and (iii) shall be approved by the Independent Directors of the Company.
(f) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(g) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(h) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(i) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(j) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(k) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Cypress Sharpridge Investments, Inc.)
Appointment and Duties of the Manager. (a) The Effective as of the Purchase Agreement Closing Date, the Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiariesthe Wind-Down, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms and conditions of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets, shall manage the day-to-day affairs of the Company (and the operations all subsidiaries and joint ventures of the Company) and the Wind-Down, at all times will be subject to the supervision supervision, direction and direction management of the Board of Directors Trustees and will have only such functions and authority as the Board of Directors Company may delegate to it. The Company hereby reserves to a majority of the independent Trustees on the Board of Trustees the following powers:
(i) the authority to determine or change the direction of the Company at any time and in the sole discretion of the Board of Trustees, includingincluding without limitation the structure, without limitationterms, timing and other matters related to the Wind-Down;
(ii) the approval or disapproval of prospective dispositions of Investments;
(iii) the approval of the terms of loan documents for any Company financings;
(iv) the approval of the Company’s annual budget (it being understood that the Manager will submit such budget in advance to the Board of Trustees for review and approval, and will provide quarterly updates of performance against the annual budget to the Board of Trustees);
(v) the approval of the retention of the Company’s registered public accountants;
(vi) the approval of any material transaction between the Company and the Manager and its Affiliates, other than transactions pursuant to this Agreement and other transactions in effect as of the Purchase Agreement Closing Date;
(vii) the issuance of equity or debt securities by the Company;
(viii) the grant of equity incentive awards by the Company;
(ix) the entry into joint ventures by the Company or its Subsidiaries;
(x) the approval of entry into any (A) merger, consolidation, reorganization, or business combination of the Company, (B) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (C) a termination, dissolution or liquidation of the Company; and
(xi) such other matters as may be determined by the Board of Trustees from time to time.
(c) Effective as of the Purchase Agreement Closing Date, the Company, subject to Section 2(b) hereby delegates the following functions and authority identified herein and delegated to the Manager herebyManager. The Subject to Section 2(b), the Manager will be responsible for managing the assets, the day-to-day operations affairs and the Wind-Down of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets, operations and operations Wind-Down of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming sourcing, investigating and maintaining evaluating dispositions of Investments, subject to and consistent with the Investment CommitteeManual, which will have the following responsibilities: (A) proposing the Investment Guidelines and making recommendations with respect thereto to the Board of DirectorsTrustees, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.where applicable;
(ii) serving as subject to and consistent with the Investment Manual, conducting negotiations with brokers, sellers and purchasers, and their respective agents and representatives, investment bankers and owners of privately and publicly held real estate or related assets, regarding the sale or other disposition of any Investments;
(iii) managing and monitoring the operating performance of Investments and providing periodic reports to the Board of Trustees, including comparative information with respect to such operating performance and budgeted or projected operating results;
(iv) engaging and supervising independent contractors that provide services relating to the Company, the Investments or the Wind-Down, including, but not limited to, investment banking, legal or regulatory advisory, tax advisory, accounting advisory, securities brokerage, property management/operations, property condition, real estate and leasing advisory and brokerage, and other financial and consulting services reasonably necessary for Manager to perform its duties hereunder (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s consultant with respect to independent public accountant and that the periodic review Independent Trustees and any committee of the investments, borrowings and operations Board of Trustees shall retain the Company and authority to hire its or their own attorneys or other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case advisors);
(v) subject to the any required approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selectionTrustees, purchase, monitoring and disposition negotiating on behalf of the Company’s investments;
(iv) serving as , the Company’s consultant with respect to decisions regarding terms of loan documents for any Company financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing enforcing, monitoring and financing investments managing compliance with loan documents to which the Company is a party on behalf of the Company;
(vii) providing coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with portfolio managementthe joint venture or co-investment partners;
(viii) engaging coordinating and supervisingsupervising all property managers, on behalf tenant operators, leasing agents and developers for the administration, leasing, management and/or development of any of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing administering bookkeeping and supervising accounting functions as are required for the performance of administrative functions necessary in the management management, affairs and Wind-Down of the Company Company, contracting for audits and preparing or causing to be prepared such periodic reports and filings as may be agreed upon required by any governmental authority in connection with the Manager ordinary conduct of the Company’s affairs, and otherwise advising and assisting the Board of DirectorsCompany with its compliance with applicable legal and regulatory requirements, including, without limitation, periodic reports, returns or statements required under the services in respect Exchange Act, the Code and any regulations or rulings thereunder, the securities and tax statutes of any equity incentive plan jurisdiction in which the Company may establish for is obligated to file such reports, or the Independent Directors, the collection of revenues rules and the payment regulations promulgated under any of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functionsforegoing;
(xi) communicating on behalf advising and assisting in the preparation and filing of all proxies and other forms or documents filed with the SEC pursuant to the Securities Act or any state securities regulators (it being understood that the Company with shall be responsible for the holders content of any equity and all of its SEC filings or debt securities of the Company as required to satisfy the reporting state regulatory filings, and other requirements that Manager shall not be held liable for any costs or liabilities arising out of any governmental bodies misstatements or agencies omissions in the Company’s SEC filings, state regulatory filings or trading exchanges other filings referred to in this subparagraph, whether or markets and to maintain effective relations with such holdersnot material (except by reason of acts constituting bad faith, including website maintenancewillful misconduct, logo design, analyst presentations, investor conferences and annual meeting arrangementsgross negligence or reckless disregard of Manager’s duties under this Agreement);
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and(until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT) (it being understood that the Board of Trustees and its Audit Committee shall retain authority to determine the Company’s independent public accountant and that the Independent Trustees and any Committee of the Board of Trustees shall retain the authority to hire its or their own attorneys or other advisors);
(xiii) taking all necessary actions to enable the Company to make required tax filings and reports, if applicableincluding soliciting shareholders for required information to the extent required by the provisions of the Code applicable to REITs (until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT);
(xiv) counseling the Company regarding the maintenance of its status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder (until such time that the Board of Trustees determines that the Company should no longer qualify as a REIT);
(xv) counseling the Company regarding the maintenance of its exemption from the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from the Investment Company Act;
(xvi) counseling the Company in connection with policy decisions to be made by the Board of Trustees;
(xvii) evaluating and recommending to the Board of Trustees modifications to any hedging strategies in effect as of the Purchase Agreement Closing Date and engaging in hedging activities;
(xviii) communicating with the Company’s investors and analysts as required to satisfy reporting or other requirements of any governing body or exchange on which the Company’s securities are traded and to maintain effective relations with such investors;
(xix) investing and re-investing any moneys and securities of the Company (including investing in short-term Investments pending investment in Investments, taxable REIT subsidiaries payment of fees, costs and (iiexpenses, or payments of dividends or distributions to shareholders and partners of the Company) conduct quarterly compliance reviews with respect theretoand advising the Company as to its capital structure, including as relates to the Wind-Down;
(xx) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Trustees;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors Trustees from time to time;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company and the Wind-Down as the Board of Directors shall reasonably request or the Trustees and Manager shall deem appropriate under the particular circumstancesagree from time to time; and
(xxviixxiv) using commercially reasonable efforts to cause the Company to comply with all applicable lawslaws and regulations in all material respects, subject to the Company providing appropriate, necessary and timely funding of capital. The independent Trustees on the Board of Trustees have dispositive power in the event of any conflict between the Board of Trustees and the Manager with respect to the functions and authority delegated to the Manager above. Without limiting the foregoing, the Manager will perform portfolio management services on behalf of the Company with respect to the Investments and the Wind-Down. Such services will include, but not be limited to, consulting with the Company on the sale or other disposition of the Company’s assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the sale or other disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(cd) Subject to Section 2(b) above, the Manager may enter into agreements with other parties in connection with its duties hereunder.
(e) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management management, operations and operations Wind-Down of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents of any Affiliate of the Manager).
(f) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Trustees, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment (i) an appraisal prepared by an independent real estate appraiser; (ii) reports and information on the Company’s affairs and asset performance; and (iii) other information reasonably requested by the Company.
(g) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company required by the Board of Trustees in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, as well as all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm (unless the Board of Trustees determines that such an audit is not necessary or advisable).
(h) The Manager shall prepare regular reports for the Board of Trustees to enable the Board of Trustees to review the Company’s assets and performance and compliance with the Investment Manual and any policies approved by the Board of Trustees.
(i) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder.
(j) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company PAC and the Operating Partnership hereby appoints appoint the Manager to manage and administer the investments Investments and day-today‑to-day operations of the Company and its SubsidiariesEntities, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision oversight of, and such further limitations or parameters consistent with this Agreement as may be imposed from time to time by, the Board of DirectorsBoard. The Manager hereby agrees to will use its commercially reasonable efforts to perform each of the its duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof8. The appointment Company shall not appoint any other Person except the Manager to perform the duties and carry out the responsibilities of the Manager shall described herein, except as may otherwise be exclusive to the Manager, permitted by this Agreement and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with subject to the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments Investments and the day-to-day operations of the CompanyCompany Entities, at all times will be subject to the supervision oversight and direction of the Board Board, will act in a manner that is compliant with the provisions of Directors the Governing Instruments of each Company Entity, will use commercially reasonable efforts to present to the Company potential investment opportunities and will have only such functions perform its duties hereunder, including managing the Company's business affairs in conformity with the Investment Guidelines and authority as other policies that are determined and adopted by the Board. PAC, the Operating Partnership and the Manager hereby acknowledge the adoption by the Board of Directors may delegate the Investment Guidelines, including the Company's investment strategy with respect to it, including, without limitationTarget Assets. PAC, the functions Operating Partnership and authority identified herein the Manager hereby acknowledge and delegated agree that, during the term of this Agreement, any proposed changes to the Company's investment strategy that would modify or expand the Target Assets shall require a change in, or supplement to, the Investment Guidelines. The Company shall notify the Manager hereby. promptly of any amended, restated, supplemented or waived Investment Guidelines, including any modification or revocation of the Manager's authority set forth in the Investment Guidelines; provided, however, that such modification or revocation shall not be applicable to investment transactions to which the Manager has committed any Company Entity prior to the date of receipt by the Manager of such notification.
(c) The Manager will be responsible for the day-to-day operations of the Company Entities (which, for purposes of the Manager's responsibilities in this Agreement, includes their respective subsidiaries) and will perform (or cause to be performed) ), subject to the Board's oversight, such services and activities relating to the investments Investments and the day-to-day operations of the Company Entities as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing modifications to the Investment Guidelines to the Board of DirectorsBoard, (B) periodically reviewing the Company’s investment 's Investment portfolio for compliance with the Investment Guidelines on a monthly basisand reporting its findings to the Board, (C) periodically reviewing the Investment Guidelines adopted by and reporting to the Board of Directors on a periodic basis, (D) reviewing regarding the diversification of the Company’s investment 's Investment portfolio and the Company’s hedging and financing strategies on a monthly basisstrategies, and (ED) generally be responsible for conducting or overseeing the provision of the services and activities set forth in this Section 2.;
(ii) serving as the Company’s consultant investigating, analyzing, selecting, conducting due diligence with respect to, negotiating the terms and conditions of (including negotiating the forms of definitive agreements), arranging financing for and recommending to the periodic review of Board in accordance with procedures adopted by the investments, borrowings and operations of the Company and other policies and recommendations Board possible Investment Transactions consistent with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selectionprospective Investment Transactions and Financing Transactions, purchaseconducting negotiations (including negotiation of definitive agreements) with sellers, monitoring purchasers, prospective merger partners, lenders and disposition other financing sources and brokers and, if applicable, their respective agents and representatives and closing Investment Transactions and Financing Transactions on behalf of the Company’s investmentsCompany Entities;
(iv) serving effecting any private placement of interests in the Operating Partnership, tenancy-in-common or other interests in Investments as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken may be approved by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsBoard;
(v) advising delivering to, or maintaining on behalf of, the Company copies of all appraisals obtained in connection with respect the Investments in any Real Estate Assets as may be required to incentive plans that be obtained by the Company may establish for the Independent DirectorsBoard;
(vi) purchasing negotiating and financing investments on behalf causing the Company to enter into, within the discretionary limits and authority granted by the Board, repurchase agreements, interest rate swap agreements, agreements relating to borrowings under programs established by the U.S. Government and other agreements and instruments required to conduct the business of the CompanyCompany Entities;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf at the expense of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurancemortgage brokerage, legalreal estate brokerage services, accountingother financial services, transfer agentdue diligence services, registrar underwriting review services, legal and such accounting services, and all other services (including transfer agent and registrar services) as may be required relating to the Company Entities' operations, Investments, Investment Transactions or Financing Transactions;
(viii) advising the Company Entities on, preparing, negotiating and entering into, on behalf of the Company’s operations or investments (or potential investments), applications and agreements relating to programs established by the U.S. Government;
(ix) coordinating and managing operations of any joint venture or co-investment interests held by the Company Entities and conducting all matters with the joint venture or co‑investment partners;
(x) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyCompany Entities;
(xxi) entering into on behalf of the Company Entities leases and service contracts in connection with the Investments and administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the Company's management of the Company as may be agreed upon under oversight by the Manager and the Board of DirectorsBoard, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, including the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xixii) communicating on the Company's behalf of the Company with the holders of any equity or debt securities of PAC or the Company Operating Partnership as required to satisfy the reporting and other requirements of any governmental bodies body or agencies agency or trading exchanges or markets market and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
; (xiii) evaluating and recommending to the Company Board hedging strategies and engaging on the Company's behalf in hedging activities on behalf of within the Companydiscretionary limits and authority as granted by the Board, consistent with such strategies, as so modified from time to time, with the Company’s 's qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Preferred Apartment Communities Inc)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to prospective investments by the selectionCompany and dispositions of Investments, purchaseconducting negotiations with sellers and purchasers and their respective agents, monitoring representatives and disposition of the Company’s investmentsinvestment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) negotiating on behalf of the Company for the sale, exchange or other disposition of any Investments;
(vi) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xviii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with KKR Corp.’s status as a REIT, with the Company’s qualification status as a REIT partnership for federal income tax purposes (and not as an association or publicly traded partnership taxable as a corporation) and with the Investment Guidelines;
(xivxii) counseling the Company regarding the maintenance of its qualification status as a partnership for federal income tax purposes and monitoring compliance with the various requirements necessary to avoid treatment of the Company as an association or a publicly traded partnership taxable as a corporation as set out in the Code and the Treasury Regulations thereunder;
(xiii) counseling the Company regarding the maintenance of KKR Corp.’s status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxiv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xv) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xvi) furnishing reports representing and statistical and economic research making recommendations to the Company regarding in connection with the activities purchase and services performed for finance of, and commitment to purchase and finance, mortgage loans (including on a portfolio basis), real estate, real estate securities, other real estate-related assets and non-real estate related assets, and in connection with the Company or its Subsidiaries, if any, by the Managersale and commitment to sell such assets;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to partnerships and REITs and, if applicable, taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company and the Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders holders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to partnerships and REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company or any Subsidiary may be involved or to which the Company or any Subsidiary may be subject arising out of the Company’s day-to-day operationsoperations of the Company or any Subsidiary, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company or any Subsidiary to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company and each Subsidiary to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided that (i) any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate then would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates. The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company's Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s 's consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the "Guidelines") and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s 's debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification 's status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company's investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company's activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s 's day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company's portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the "Portfolio Management Services") on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company's portfolio of assets; the collection of information and the submission of reports pertaining to the Company's assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company's portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the "Monitoring Services") on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers' delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than would be obtained from a third party on an arm's-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company's prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company's prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company's books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare, at the sole cost and expense of the Company, regular reports for the Board of Directors to enable the Board of Directors to review the Company's acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager's acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money ("Excess Funds") in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager's unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s 's sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company General Partner hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company Partnership consistent with the terms of the Partnership Agreement and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of DirectorsAgreement. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, Manager except to the extent that the Manager electsotherwise agrees, in its sole and absolute discretion, in accordance with and except to the terms of this Agreementextent that, the Manager elects to cause the duties of the Manager as set forth herein hereunder to be provided by third partiesparties pursuant to the terms of this Agreement.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the CompanyPartnership, at all times will be subject to the supervision and direction oversight of the Board of Directors and will have only such functions and authority as the Board of Directors General Partner may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Partnership and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company Partnership as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on conducting a periodic basisreview of acquisition criteria and parameters for acquisitions, (D) reviewing the diversification of the Company’s investment portfolio borrowings and the Company’s hedging operations related thereto and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.originating acquisition opportunities;
(ii) serving as the Company’s consultant investigation, analysis and selection of acquisition opportunities;
(iii) with respect to prospective acquisitions or dispositions by the periodic review of the investmentsPartnership, borrowings conducting negotiations with sellers and operations of the Company purchasers and other policies their respective agents, representatives and recommendations with respect thereto, advisors (including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsinvestment bankers);
(iv) serving as the Company’s consultant with respect to decisions regarding coordinating and managing operations of any financings, hedging activities joint venture or borrowings undertaken co-investment interests held by the Company Partnership and conducting all matters with the joint venture or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s co-investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentspartners;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyPartnership;
(xvi) administering the day-to-day operations of the Partnership and performing and supervising the performance of such other administrative functions necessary in the management of the Company Partnership as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the CompanyPartnership’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xivii) communicating on behalf of the Company Partnership with the holders of any equity or debt securities of the Company Partnership as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiviii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company Partnership regarding the maintenance of its qualification status as a REIT publicly traded partnership for tax purposes and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder related to such status;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviiix) monitoring the operating performance of the CompanyPartnership’s investments assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating and performance and budgeted or projected operating results;
(xviiix) investing and re-investing any monies moneys and securities of the Company Partnership (including including, without limitation, investing in short-term investmentsinvestments pending investment in operational assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the CompanyPartnership) and advising the Company Partnership as to its capital structure and capital-raising activitiescapital raising;
(xixxi) causing assisting the Company Partnership to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries publicly traded partnerships and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxii) causing the Company Partnership to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixiii) managing and administering the Partnership’s rights and obligations under all agreements with unaffiliated third parties to which the Partnership is a party or by which the Partnership is bound and monitoring compliance by the Partnership and by such unaffiliated third parties to such agreements with the terms and conditions thereof;
(xiv) assisting the Company Partnership in complying with all regulatory requirements applicable to the Company Partnership in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxiixv) taking all necessary actions to enable the Company and any Subsidiaries Partnership to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiiixvi) handling and resolving all claims, disputes or controversies (including including, without limitation, all litigation, arbitration, settlement or other proceedings or negotiations) with unaffiliated third parties in which the Company Partnership may be involved or to which the Company Partnership may be subject arising out of the CompanyPartnership’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxvii) using commercially reasonable best efforts to cause expenses incurred by or on behalf of the Company Partnership to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines as may be set by the Board of Directors from time to time;
(xxvixviii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Partnership as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixix) using commercially reasonable best efforts to cause the Company Partnership to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyPartnership, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyPartnership. In performing The Manager shall also have the right to cause any of such services as may be appropriate to be rendered by its duties under this Section 2, employees or affiliates. The Partnership shall pay or reimburse the Manager shall or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are reasonable and no greater than those which would be entitled payable to rely reasonably outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expensean arm’s-length basis.
(d) The Manager shall refrain from any action thatprepare, in its or cause to be prepared, at the sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification cost and expense of the Company as a REIT under Partnership, all reports, financial or otherwise, with respect to the Code Partnership reasonably required by the Board of Directors in order for the Partnership to comply with its Governing Instruments or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of other materials required to be filed with any governmental body or agency having jurisdiction over the Company agency, and shall prepare, or of any exchange on which the securities cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company may be listed or that would otherwise not be permitted Partnership’s books of account by a nationally recognized independent accounting firm selected by the Company’s Governing Instruments. If the Manager is ordered to take any action by audit committee of the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company Manager shall keep a full and complete account of all costs, expenses and expenditures incurred by it in connection with the provision of services under this Agreement. To the extent that the Manager engages in activities other than the discharge of its responsibilities under this Agreement, the Manager shall separately account for all such costs, expenses and expenditures and the Partnership shall not be billed for such costs, expenses and expenditures.
(including f) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Partnership’s operations and compliance with the guidelines and policies approved by the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company CDS hereby appoints the Manager to manage and administer the investments Investments and day-tothe day‑to-day operations of the Company and its SubsidiariesCDS Entities, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of DirectorsAgreement. The Manager hereby agrees to will use its commercially reasonable efforts to provide the services contemplated hereunder and otherwise to perform each of the its duties set forth herein, provided that funds are made or caused to be made available by the Company for such purposes CDS as set forth in Section 7 hereof8. The appointment CDS shall not appoint any other Person except the Manager to perform the duties and carry out the responsibilities of the Manager shall be exclusive to the Managerdescribed herein, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of as may otherwise be permitted by this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in performance of its capacity as manager of the investments and the operations of the Companyduties hereunder, at all times will be subject to act in a manner that is consistent with the supervision and direction provisions of the Board Governing Instruments of Directors each CDS Entity, and will have only such functions use commercially reasonable efforts to perform its duties hereunder, including to present to CDS potential investment opportunities and authority as to manage CDS’s business affairs in conformity with the Board investment parameters and other policies that are established by CDS. The Manager hereby acknowledges and agrees that any proposed changes to CDS’s investment strategy shall require the prior written approval of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to CDS. CDS shall notify the Manager hereby. promptly of any amended, restated or supplemented investment strategies from time to time.
(c) The Manager will be responsible for the day-to-day operations of the Company CDS Entities and will perform (or cause to be performed) such services and activities relating to the investments their respective Investments and operations of the Company Real Estate Assets, as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines modifications to the Board investment strategy of DirectorsCDS, (B) periodically reviewing the Company’s investment CDS Investment portfolio for compliance with the Investment Guidelines on a monthly basisits investment strategy and reporting its findings to CDS, (C) periodically reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing and reporting to CDS regarding the diversification of the Company’s investment CDS Investment portfolio and the Company’s hedging and financing strategies on a monthly basisstrategies, and (ED) generally be responsible for conducting or overseeing the provision of the services and activities set forth in this Section 2.Agreement;
(ii) serving as the Company’s consultant investigating, analyzing, selecting, conducting due diligence with respect to, negotiating the terms and conditions of (including negotiating the forms of definitive agreements), arranging financing for and recommending to the periodic review of the investmentsCDS, borrowings and operations of the Company and other policies and recommendations possible Investment Transactions consistent with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsCDS’s investment strategy;
(iii) serving as the Company’s consultant with respect to prospective Investment Transactions and Financing Transactions, conducting negotiations (including negotiation of definitive agreements) with sellers, purchasers, prospective Joint Venture or merger candidates, lenders and other financing sources and their respective agents and representatives, and, if applicable, closing the selection, purchase, monitoring Investment Transactions and disposition of the Company’s investmentsFinancing Transactions as may be approved by CDS;
(iv) serving effecting any private placement of interests in Investments, as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken may be approved by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsCDS;
(v) advising delivering to or maintaining on behalf of CDS copies of all appraisals or marketing reports obtained in connection with the Company with respect to incentive plans that the Company Real Estate Assets as may establish for the Independent Directorsbe desired or required by CDS;
(vi) purchasing negotiating, within the discretionary limits and financing investments on behalf authority granted by CDS in this Agreement, repurchase agreements, agreements relating to borrowings under programs established by the U.S. Government and other agreements and instruments required to conduct the business of the CompanyCDS Entities;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf supervising Affiliates of the Company Manager and at the Company’s expense, independent contractors approved by CDS that provide real estate, investment banking, securities brokerage, insuranceequity capital, legalmortgage brokerage, accountingreal estate brokerage services, transfer agentother financial services, registrar due diligence services, underwriting review services, legal and such accounting services, professional services, including engineering and architectural services, and all other services (including transfer agent and registrar services) as may be required relating to the Company’s operations Real Estate Assets, CDS Entities’ operations, Investments, Investment Transactions or investments Financing Transactions;
(or potential investments)viii) reserved;
(ix) as directed by CDS, coordinating and managing operations of any Joint Venture or co-investment interests held by the CDS Entities and conducting all matters with the Joint Venture or co‑investment partners;
(x) providing executive executive, management, and administrative personnel, office space and office services required in rendering services to the Companyhereunder;
(xxi) negotiating leases and service contracts in connection with the Investments and administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directorsfunctions, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, including the collection of revenues and the payment of the Company’s debts and obligations obligations, and maintenance of appropriate information technology computer services to perform such administrative functions;
(xixii) as directed by CDS, communicating on behalf of the Company with the holders of any equity or debt securities of the Company CDS as required to satisfy the reporting and other requirements of any governmental bodies body or agencies agency or trading exchanges or markets market and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and and, as directed by CDS, engaging in hedging activities on behalf of within the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT discretionary limits and with the Investment Guidelinesauthority specifically granted by CDS within its investment strategy;
(xiv) counseling the Company providing counsel regarding the maintenance of CDS or its Affiliate’s potential qualification as a REIT and and, if implemented, thereafter monitoring compliance with the various REIT qualification tests and other related rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations, and using commercially reasonable efforts to cause the applicable CDS Entities to continue to qualify for taxation as a REIT;
(xv) counseling providing counsel regarding exemptions from the Company regarding the maintenance status of its exemption from status as an investment company required to register under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemption and using commercially reasonable efforts to cause the applicable CDS Entities to maintain such exemption;
(xvi) furnishing reports and statistical and economic research regarding Investments and potential Investments, as well as disclosing any potential conflicts of interest involving the Manager or any of its Affiliates not already disclosed in public filings made pursuant to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the ManagerSEC regulations;
(xvii) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directorsthereto, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing providing advice with respect to equity and re-investing any monies debt capitalization and securities of financing strategies related to the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiesInvestments;
(xix) causing assisting the Company CDS Entities to retain qualified accountants and legal counsel, as applicable, to (i) assist advise in developing appropriate accounting procedures and systems, internal controls and other compliance procedures, compliance procedures to provide sound tax and testing systems with respect legal advice and to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly annual compliance reviews with respect thereto;
(xx) causing assisting the Company to qualify CDS Entities in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company CDS Entities in complying with all laws and regulatory requirements applicable to the Company in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all maintaining reports and documents, if any, documents to the extent required under the Exchange Act or the Securities Actby applicable law;
(xxii) assisting the CDS Entities in taking all necessary actions to enable the Company and any Subsidiaries action to make required tax filings and reports, including soliciting stockholders for required information to reports in accordance with the extent necessary under the Code and U.S. Treasury regulations applicable to REITsCode;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company a CDS Entity may be involved involved, or to which the Company any CDS Entity or Real Estate Asset or other interest may be subject subject, arising out of the CompanyCDS Entity’s day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by CDS;
(xxiv) using commercially reasonable efforts to cause expenses incurred on behalf of any CDS Entity to be commercially reasonable or usual and customary and within any budgeted parameters or expense guidelines proposed by the Manager and approved by CDS from time to time;
(xxv) advising on the appropriateness of leverage ratios, cash positions and long-term capital reserves;
(xxvi) providing portfolio management services;
(xxvii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the CompanyCDS Entities’ businesses;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxviii) performing such other services as may be required from time to time for the management and other activities relating to the CDS assets of the Company and business as the Board of Directors shall reasonably request requested by CDS or as the Manager shall deem appropriate under the particular circumstances; and
(xxviixxix) using commercially reasonable efforts providing or causing to cause be provided all due diligence, design, development, construction management, property management, asset management, analytical, accounting, financial, and other services necessary for the Company to comply with all applicable lawsdevelopment and operation of the Real Estate Assets.
(cd) The Manager may retain, for and on behalf, and at the sole cost and expense, behalf of the CompanyCDS, such services of the persons and firms referred to in Section 7(b) hereof Persons as the Manager deems necessary or advisable for the provision of services referred to in Section 8 in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseCDS.
(de) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelinesinvestment strategy of CDS, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s status CDS Entity as an entity excluded from investment company status under the Investment Company Act, or (iii) would conflict with or violate (A) any law, rule or regulation of any governmental body or agency having jurisdiction over the Company any CDS Entity, or of (B) any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s applicable Governing Instruments. If the The Manager is ordered may proceed with taking an action described above if expressly instructed to take any action do so by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing InstrumentsCDS. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Companyany CDS Entity, the Board of Directorsany Joint Venture, or the Company’s stockholders members or other holders of equity interests in any CDS Entity, for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of 9. In performing its duties under this AgreementSection 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including accountants, legal counsel and other professional service providers).
(ef) Without limiting any other reporting requirement, Manager shall notify CDS of all contemplated Investment Transactions not less than 30 days prior to the anticipated date of completion of the transaction. The Company Manager shall seek and obtain CDS prior approval of any Investment Transaction, regardless of whether it meets the investment strategy of CDS. In all transactions requiring approval by CDS, the Manager will deliver to CDS all documents and other information reasonably required to evaluate properly the proposed transaction.
(including the Board of Directorsg) agrees to CDS will take or cause all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, including all steps reasonably necessary to allow the Manager and its Affiliates to file make any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNASDAQ regulations, the Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to CDS will use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its legal obligations hereunder.
(h) As frequently as the Manager may deem necessary or advisable, or at the direction of CDS, the Manager shall prepare (or cause to be prepared) reports and other information relating to any proposed Investment.
(i) The Manager shall prepare (or cause to be prepared) all reports, financial or otherwise, reasonably required by CDS in order for the CDS Entities to comply with their respective Governing Instruments or as otherwise reasonably requested by CDS, including its obligations to deliver an annual audit or review of any CDS Entity consolidated financial statements by a nationally recognized independent accounting firm.
(j) The Manager shall prepare (or cause to be prepared) regular reports for CDS to enable it to review CDS Entity acquisitions, Investment portfolio composition and any other information or reports characteristics, credit quality, performance and compliance with respect the investment strategy and policies approved by it from time to the Company. If the Manager is not able to provide a servicetime.
(k) Officers, or in the reasonable judgment employees and agents of the Manager it and its Affiliates may serve as directors, officers, agents, nominees or signatories for any CDS Entity, but only to the extent permitted by their respective Governing Instruments, or by any resolutions duly adopted by the CDS Entity. When executing documents or otherwise acting in such capacities for any CDS Entity, such Persons shall indicate they are executing or acting on behalf of such CDS Entity. Without limiting the foregoing, while this Agreement is not prudent in effect, the Manager will establish an executive management team and such other positions, along with appropriate support personnel, to provide a servicethe management services to be provided by the Manager to the CDS Entities hereunder, without who shall devote such of their time to the approval management of the Board Investments and consideration of Directorsthe investment strategy and policies and day-to-day operations of the CDS Entities, as applicablemay be necessary and appropriate, then commensurate with the level of activity of CDS from time to time.
(l) The Manager, if directed by CDS and at CDS’s expense, shall obtain and maintain reasonable and customary “errors and omissions” insurance coverage and other customary insurance coverage in respect to its obligations and activities under, or pursuant to, this Agreement, naming the CDS Entities as additional insureds.
(m) The Manager shall provide such internal audit, compliance and control services as may be required for the Manager and its Affiliates to comply with applicable law (including the Securities Act and Exchange Act), regulations (including SEC regulations) and the rules and requirements of NASDAQ and as otherwise reasonably requested by CDS from time to time.
(n) If required by applicable statute in the performance of this Agreement, the Manager shall maintain any required registration of the Manager or any Affiliate with the SEC under the Investment Advisers Act of 1940, as amended, or with any state securities authority in any state in which the Manager or its Affiliate is required to be excused from providing registered as an investment advisor under applicable state securities laws. The Manager does not currently expect such service (and shall not be in breach of this Agreement) until the applicable approval has been obtaineda registration is required.
Appears in 1 contract
Samples: Master Asset Management Agreement (Comstock Holding Companies, Inc.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties. During the term of this Agreement, the Manager shall have the right to designate not less than two persons as nominees for election to the Board of Directors (“Manager Directors”). The Nominating and Corporate Governance Committee of the Board of Directors and the full Board of Directors shall take all necessary action to effect the foregoing. Each Manager Director shall agree to resign as a member of the Board of Directors effective immediately upon either (x) the number of Manager Directors being equal to or more than the number of Independent Directors (following any cure period granted under the New York Stock Exchange or other applicable listing rules or standards), provided that, such resignation shall only be in effect for the period during which the number of Manager Directors is equal to or more than the number of Independent Directors, and provided further that under the circumstances set forth in this clause (x), the Manager shall be entitled to continue to have at least one Manager Director on the Board of Directors, or (y) the termination of this Agreement.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development, brokerage, financial advisory, custodial and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such Affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare, at the sole cost and expense of the Company, regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company to terminate this Agreement under (x) Section 13(a) of this Agreement due to the Manager’s unsatisfactory performance or (y) Section 15 of this Agreement for cause.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision and direction of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. In performing its duties hereunder, the Manager also herby agrees to use its commercially reasonable efforts to comply, and to cause the personnel providing services to the Company to comply, with the Conflicts of Interest Policy, the Investment Guidelines and the Company’s Investment Committee Charter. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, including the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investment criteria and parameters for investments, borrowings and operations (including the Investment Guidelines and Conflicts of Interest Policy, any modifications to which shall be approved by a majority of the Company Independent Directors) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the thereto for approval of by the Board of Directors;
(ii) making available to the Company the Manager's knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets and real estate operating companies in the healthcare industry and otherwise;
(iii) serving as the Company’s 's consultant with respect to the identification, investigation, evaluation, analysis, selection, purchase, origination, negotiation, structuring, monitoring and disposition of the Company’s investments, including the accumulation of assets for securitization;
(iv) serving as the Company’s 's consultant with respect to decisions regarding any financings, securitizations, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing warehouse or other financings for its investments;
investments and (v3) advising the Company with respect to incentive plans that and structuring long-term financing vehicles for the Company’s investments, and advising the Company may establish with respect to offering and selling securities publicly or privately in connection with any such structured financing;
(v) serving as the Company's consultant with respect to arranging for the Independent Directorsissuance of mortgage backed securities from pools of mortgage loans or mortgage backed securities owned by the Company;
(vi) purchasing representing and financing investments making recommendations to the Company in connection with the purchase and finance and commitment to purchase and finance investments;
(vii) with respect to any prospective investment by the Company and any sale, exchange or other disposition of any investment by the Company, conducting negotiations on behalf of the CompanyCompany with real estate brokers, sellers and purchasers and their respective agents, representatives and investment bankers and owners of privately and publicly held real estate companies;
(viiviii) providing the Company with portfolio management, asset servicing and loan servicing, including enforcing rights, exercising remedies, granting consents, and taking other actions on behalf of the Company in respect of the Company’s investments;
(viiiix) conducting periodic on-site visits to properties to inspect the physical condition of the properties and to evaluate the performance of a tenant or operator of its duties;
(x) reviewing, analyzing and commenting upon the operating budgets, capital budgets and leasing plans of properties;
(xi) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, mortgage brokerage, securities brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting, transfer agent, registrar registrar, leasing, master servicing, special servicing, due diligence and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixxii) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(xiii) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxiv) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, including the services in respect of any equity of the Company's incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xixv) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixvi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixvii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxviii) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations Regulations promulgated thereunder;
(xvxix) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixx) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixxi) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixxii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xixxxiii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxxiv) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixxv) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or and the Securities ActAct or by the NYSE;
(xxiixxvi) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxvii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operationsoperations other than with the Manager or its Affiliates;
(xxivxxviii) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxix) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxx) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxxi) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers (including title insurers), surveyors, engineering, environmental and firms referred to in Section 7(b) hereof seismic consultants, insurance consultants and brokers, public relations and marketing consultants, information technology consultants, investment relations advisers, securities brokers, mortgage brokers, transfer agents, registrars, financial printers, developers, investment banks, financial advisors, internal audit service providers, banks and other lenders, consultants, agents, contractors, vendors, advisors and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, including accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall use commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded exempted from investment company status under the Investment Company Act, or (iiiii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of Manager, its Affiliates (including American Capital) directors, officers, stockholders and employees shall not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager Manager, its directors, officers, stockholders or any of its Affiliates, employees except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, including all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification status as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionexclusion;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Deerfield Triarc Capital Corp)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, including implementation of the Plan of Liquidation, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision and direction of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. In performing its duties hereunder, the Manager also herby agrees to use its commercially reasonable efforts to comply, and to cause the personnel providing services to the Company to comply, with the Conflicts of Interest Policy. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the day-to-day operations of the Company, including implementation of the Plan of Liquidation, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, including the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Company, including in connection with implementing the Plan of Liquidation, and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company thereto as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings Company’s portfolio and operations (including the Conflicts of Interest Policy, any modifications to which shall be approved by a majority of the Company Independent Directors) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the thereto for approval of by the Board of Directors;
(ii) making available to the Company the Manager’s knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets and real estate operating companies in the healthcare industry and otherwise;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investmentsinvestments with a view to assisting the Company in its objective of maintaining the value of such investments while such investments are held by the Company and maximizing the proceeds of any sales of such investments at the time of their sale;
(iv) serving as the Company’s consultant with respect to, and making recommendations to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiariesin connection with, including (1) all other decisions relating to implementation of the Plan of Liquidation with a view to assisting the Company in developing criteria for debt and equity financing that is specifically tailored its objective of maximizing the value to shareholders from implementation of the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsPlan of Liquidation;
(v) advising with respect to any prospective sale, exchange or other disposition of any investment by the Company, conducting negotiations on behalf of the Company with respect to incentive plans that the Company may establish for the Independent Directorsreal estate brokers, purchasers and their respective agents, representatives and investment bankers and owners of privately and publicly held real estate companies;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management, asset servicing and loan servicing, including enforcing rights, exercising remedies, granting consents, and taking other actions on behalf of the Company in respect of the Company’s investments;
(vii) conducting periodic on-site visits to properties to inspect the physical condition of the properties and to evaluate the performance of a tenant or operator of its duties;
(viii) reviewing, analyzing and commenting upon the operating budgets, capital budgets and leasing plans of properties;
(ix) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, mortgage brokerage, securities brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting, transfer agent, registrar registrar, leasing, master servicing, special servicing, due diligence and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ixx) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(xi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xxii) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, including the services in respect of any equity of the Company’s incentive plan the Company may establish for the Independent Directorsplans, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xixiii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the any reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixiv) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations Regulations promulgated thereunder;
(xvxvi) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvixvii) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xviixviii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixix) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiesstructure;
(xixxx) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing and maintaining appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxxi) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixxii) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or and the Securities ActAct or by the NYSE;
(xxiixxiii) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxiv) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business including implementation of the CompanyPlan of Liquidation, other than with the Manager or its Affiliates;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers (including title insurers), surveyors, engineering, environmental and firms referred to in Section 7(b) hereof seismic consultants, insurance consultants and brokers, public relations and marketing consultants, information technology consultants, investment relations advisers, securities brokers, mortgage brokers, transfer agents, registrars, financial printers, developers, investment banks, financial advisors, internal audit service providers, banks and other lenders, consultants, agents, contractors, vendors, advisors and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, including accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense. The Manager shall use commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded exempted from investment company status under the Investment Company Act, or (iiiii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of Manager, its Affiliates (including American Capital) directors, officers, stockholders and employees shall not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager Manager, its directors, officers, stockholders or any of its Affiliates, employees except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, including all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:limitation (it being understood that, with respect to the duties of the Manager set forth in this Section 2(b), all references to the Company shall include the Company and the Subsidiaries):
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly periodic basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly periodic basis, and (E) generally be responsible for conducting or and overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selection, purchase, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to the Manager Equity Plan, the Director Stock Plan and any other equity or incentive plans that the Company may establish for the Independent Directorsestablish;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directorsestablish, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology services to perform such administrative functions;
(xi) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) evaluating and recommending to the Company hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining such exemption;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing and re-investing any monies and securities of the Company (including in short-term investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activities;
(xix) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, internal controls, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing the Company to qualify to do business in all jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act, the Securities Act or the Securities Actrules and regulations of the NYSE;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets assets, business and operations of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments, code of business conduct and ethics or other compliance or governance policies or procedures. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such the qualification of the Company as a REIT, the Company’s or any Subsidiary’s status as an entity intended to be excluded from registration under the Investment Company Act or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American CapitalTCW) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, NasdaqNYSE rules and requirements, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Arbolada Capital Management Co)
Appointment and Duties of the Manager. (a) The Company and the Operating Partnership hereby appoints appoint the Manager to act as the investment adviser to the Companies and to manage the investments investment and day-to-day operations reinvestment of the Company and its Subsidiariesassets of the Companies, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofof the Company’s board of directors (the “Board of Directors”) and the Operating Partnership’s investment committee (the “Investment Committee”), for the period and such further limitations or parameters as may be imposed from time to time byupon the terms herein set forth, in accordance with (x) the investment objectives, policies and restrictions that are adopted by the Board of Directors. The , as such objectives, policies and restrictions shall be amended or supplemented from time to time, (y) all applicable foreign, U.S. federal, state and local laws, rules and regulations, and (z) the Company’s charter and by-laws and the Operating Partnership’s agreement of limited partnership, in each case, as amended from time to time, and the Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by . Without limiting the Company for such purposes as set forth in Section 7 hereof. The appointment generality of the foregoing, the Manager shall be exclusive shall, during the term and subject to the Manager, except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms provisions of this Agreement, to cause the duties of the Manager as set forth herein to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments and the operations of the Company, at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors may delegate to it, including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving serve as the Company’s Companies’ consultant with respect to the periodic review of the investment criteria and parameters for the Companies’ investments, borrowings and operations of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to for the approval of the Board of Directors;
Directors (provided that the Company will not approve investments recommended by the Manager without the separate approval of the Investment Committee); (ii) investigate, analyze and select possible investment opportunities; (iii) serving as the Company’s consultant conduct negotiations with respect to the selectionsellers and purchasers and their agents and representatives, purchaseinvestment bankers and owners of privately and publicly held real estate companies, monitoring and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt engage and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervisingsupervise, on the Companies’ behalf of the Company and at the Company’s Companies’ expense, independent contractors that provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s Companies’ investments; (v) nominate certain members of the Investment Committee for the approval of the Board of Directors in accordance with Section 2 below; (vi) negotiate on the Companies’ behalf for the sale, exchange or other disposition of any of the Companies’ investments, including the purchase or sale of the Companies’ assets or securities; (vii) coordinate and manage operations of any joint venture or investments co-investment interests held by the Companies and conduct all matters with any joint venture or co-investment partners; (or potential investments);
(ixviii) providing provide executive and administrative personnel, office space and office services required in rendering services to the Company;
Companies; (xix) performing administer the Companies’ day-to-day operations and supervising perform and supervise the performance of such other administrative functions necessary in to the Companies’ management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, including the collection of revenues and the payment of the Company’s Companies’ debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
; (xix) communicating communicate on the Companies’ behalf of the Company with the holders of any of the Companies’ equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
; (xiixi) counseling counsel the Company Companies in connection with policy decisions to be made by the Board of Directors;
; (xiiixii) evaluating evaluate and recommending recommend to the Company Investment Committee modifications to the hedging strategies in effect and engage in overall hedging strategies and engaging in hedging activities on behalf of the CompanyCompanies’ behalf, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT and with the Investment Guidelines;
investment guidelines; (xivxiii) counseling counsel the Company Companies regarding the maintenance of its qualification the Company’s status as a REIT and monitoring monitor compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated Regulations thereunder;
; (xvxiv) counseling counsel the Company Companies regarding the maintenance of its the Company’s exemption from status as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”) and monitoring monitor compliance with the requirements for maintaining such exemption;
an exemption from the Investment Company Act; (xv) assist the Companies in developing criteria for asset purchase commitments that are specifically tailored to the Companies’ investment objectives and making available to the Companies the Manager’s knowledge and experience with respect to mortgage loans, real estate, real estate-related securities, other real estate-related assets and non-real estate-related assets; (xvi) furnishing reports represent and statistical and economic research make recommendations to the Company regarding Companies in connection with the activities purchase and services performed for finance and commitment to purchase and finance mortgage loans (including on a portfolio basis), real estate, real estate-related securities, other real estate-related assets and non-real estate-related assets, and the Company or its Subsidiaries, if any, by the Manager;
sale of and commitment to sell such assets; (xvii) monitoring monitor the operating performance of the Company’s investments Companies’ investments, including asset management, and providing provide periodic reports with respect thereto to the Investment Committee and the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
; (xviii) investing and reinvest or reinvest on a non-investing discretionary basis any monies and securities money of the Company Companies (including investing in short-term investments pending investment in long-term asset investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders the Companies shareholders and partners of partners), and advise the Company) and advising the Company Companies as to its capital structure and capital-raising activities;
capital raising; (xix) causing assist the Company to retain Companies in retaining qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the REIT provisions of the Code applicable and to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
; (xx) causing assist the Company to qualify Companies in qualifying to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
; (xxi) assisting assist the Company Companies in complying with all regulatory requirements applicable to the Company Companies in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Securities Exchange Act or the Securities Act;
of 1934; (xxii) taking take all necessary actions to enable the Company and any Subsidiaries Companies to make required tax filings and reports, including soliciting stockholders shareholders for required information to the extent necessary under provided by the Code and U.S. Treasury regulations applicable to REITs;
REIT provisions of the Code; (xxiii) handling handle and resolving resolve all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Companies may be involved or to which the Company they may be subject arising out of the Company’s Companies’ day-to-day operations;
, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors; (xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxv) using use commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Companies to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
; (xxvixxv) performing perform such other services as may be required from time to time for the management and other activities relating to the Companies’ assets of the Company as the Board of Directors or the Investment Committee shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvi) open and maintain all bank accounts of the Companies, segregated from any accounts of the Manager, and monitor all of the Companies’ banking matters; (xxvii) using open and maintain all securities accounts, segregated from any accounts of the Manager, with “qualified custodians,” as defined in rules promulgated under the Investment Advisers Act of 1940; (xxviii) use commercially reasonable efforts to cause the Company Companies to comply with all applicable laws; and (xxix) perform such other services as may be required from time to time for management and other activities relating to the assets of the Companies as the Board of Directors shall reasonably request or the Manager or shall deem appropriate under particular circumstances. Subject to the provisions of this Agreement, the Manager shall have the power and authority on behalf of the Companies to effectuate investment decisions for the Companies including the execution and delivery of all documents relating to the Companies’ investments and the placing of orders for other purchase or sale transactions on behalf of the Companies. In the event that the Companies determine to acquire debt financing, the Manager will arrange for such financing on the Companies’ behalf, subject to the oversight and approval of the Board of Directors. If it is necessary for the Manager to make investments on behalf of the Companies through a special purpose vehicle, the Manager shall have authority to create or arrange for the creation of such special purpose vehicle and to make such investments through such special purpose vehicle in accordance with all applicable foreign, U.S. federal, state and local laws, rules and regulations.
(b) The Manager may enter into agreements with other parties, including its affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Companies to provide asset management, leasing, development and/or other services to the Companies, where such agreement(s) contain terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Companies; provided that such agreement shall be on terms that are then customary for management of assets similar in type, quality and value to the assets of the Companies; and provided further that any such agreements entered into with affiliates of the Manager shall be on terms no more favorable to such affiliate than would be obtained from a third party on an arm’s-length basis.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyCompanies, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyCompanies. In performing its duties under this Section 2Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be entitled rendered by its affiliates; provided that payment for such services shall be no greater than those which would be payable to rely reasonably outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by an arm’s length basis. The Companies shall pay or reimburse the Manager at or its affiliates performing such services for the Company’s sole cost and expensethereof, as set forth in Section 3(a).
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as for all purposes herein provided be deemed to be an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliatesindependent contractor and, except as expressly provided or authorized herein, shall have no authority to act for or represent the Companies in Section 8 any way or otherwise be deemed an agent of this Agreementthe Companies.
(e) The Company Manager shall keep and preserve for the period of six years (including the Board of Directorsor such longer period as may be required by law) agrees to take all actions reasonably required to permit any books and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available records relevant to the Manager provision of its investment advisory services to the Companies and shall specifically maintain all resources, information books and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports records with respect to the CompanyCompanies’ portfolio transactions and shall render to the Board of Directors and the Investment Committee such periodic and special reports as the Board of Directors or the Investment Committee may reasonably request. If The Manager agrees that all records that it maintains for the Companies are the property of the Companies and will surrender promptly to the Companies any such records upon the Companies’ request, provided that the Manager is may retain a copy of such records. The Manager shall keep confidential any non-public information obtained in connection with the services rendered under this Agreement and shall not able to provide a servicedisclose any such information (or use such information except in furtherance of its duties under this Agreement), or in except (i) with the reasonable judgment of the Manager it is not prudent to provide a service, without the approval prior written consent of the Board of Directors; (ii) to legal counsel, accountants and other professional advisors, so long as applicable, then the Manager informs such persons of the confidential nature of such information and directs them to treat such information confidentially in accordance with this Section 1(d); (iii) as required by law or legal process to which the Manager is a party or in connection with the Manager’s assertion in any judicial or non-judicial proceeding of any claim, counterclaim or defense against the Companies; or (iv) information that has previously become available through the actions of a person other than the Manager not resulting from the Manager’s violation of this Section 1(d). The provisions of this Section 1(d) shall be excused from providing such service (and shall not be in breach survive the expiration or earlier termination of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Investment Advisory Management Agreement (Ny Credit Corp.)
Appointment and Duties of the Manager. (a) The Company Partnership hereby appoints the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Managed Entities subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be delegated to or provided by third parties, whether or not affiliated with the Manager (provided that no such delegation by the Manager shall relieve the Manager of responsibility therefor), and the Partnership, at the direction of the Manager, will enter into agreements directly with such third parties to whom such duties may be delegated, as the Manager deems appropriate.
(b) The Manager, in its capacity as manager of the investments and the operations of the CompanyManaged Entities, at all times will be subject to the supervision and direction of the Board of Directors General Partner and will have only such functions and authority as the Board of Directors General Partner may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Managed Entities and will perform (or cause to be performed) such services and activities relating to the investments and operations of the Company Managed Entities as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the CompanyPartnership’s consultant with respect to the periodic review of the investments, borrowings Business and operations of the Company Managed Entities and any modifications to its purpose as directed by the General Partner and consented to by the Manager (such policy guidelines as initially approved as Appendix A to this Agreement, as the same may be modified with such approval, the “Guidelines”) and other policies established by the General Partner and recommendations with respect theretoapproved by the Manager;
(ii) investigation, includinganalysis, without limitation, selection and implementation of business opportunities for the Investment Guidelines, in each case subject to the approval of the Board of DirectorsManaged Entities;
(iii) serving as the Company’s consultant with respect to prospective business opportunities and investments by the selection, purchase, monitoring Managed Entities and disposition dispositions of assets of the Company’s investmentsManaged Entities, conducting negotiations with sellers and purchasers and their respective agents, representatives and investment bankers, and having discretion to determine if and when to proceed with any such business opportunities, investments or dispositions including entering into, on behalf of the Managed Entities, any agreements with other Persons with respect to any such business opportunities, investments or dispositions;
(iv) serving as entering into any agreements on behalf of the Company’s consultant Managed Entities in connection with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or performance of its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investmentsobligations under this Agreement;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company Managed Entities and at the Company’s Managed Entities’ expense, independent contractors that which provide real estatelegal, accounting, investment banking, banking, securities brokerage, insurancecustodial, legal, accounting, transfer agent, registrar administration and other services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Business and/or Investments;
(ixvi) negotiating on behalf of the Managed Entities for the sale, exchange or other disposition of any assets;
(vii) coordinating and managing the operations of any joint venture or co-investment interests held by the Managed Entities and conducting all matters with the joint venture or co-investment partners;
(viii) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyManaged Entities;
(xix) administering the day-to-day operations of the Managed Entities and performing and supervising the performance of such other administrative functions necessary in the management of the Company Managed Entities as may be agreed upon by the Manager General Partner and the Board of DirectorsManager, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s Managed Entities’ debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company Managed Entities with Persons holding equity interests or the holders of any equity or debt securities of the Company Managed Entities as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company Managed Entities in connection with policy decisions to be made by the Board General Partner or the relevant management team of Directorsa Managed Entity;
(xiiixii) evaluating and recommending to the Company implementing hedging strategies and engaging in hedging activities on behalf of the CompanyPartnership or a Managed Entity, consistent with such strategies, as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company Managed Entities regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance of its their exemption from status as an investment company under the registration requirements of the Investment Company Act and monitoring compliance with the requirements for maintaining such exemptionan exemption from that Act;
(xvixiv) furnishing reports assisting the Managed Entities in developing criteria for asset purchase and statistical and economic research Business commitments that are specifically tailored to the Company regarding Managed Entities’ Business and in line with the activities and services performed for the Company or its Subsidiaries, if any, by the ManagerGuidelines;
(xviixv) monitoring the operating performance of the Company’s investments Managed Entities and providing periodic reports with respect thereto to the Board General Partner or the relevant management team of Directorsa Managed Entity, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company Managed Entities (including in making short-term investmentsinvestments pending further investment in the operations of the Managed Entities, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Companylimited partners) and advising the Company each Managed Entity as to its capital structure and capital-capital raising activitiesalternatives;
(xixxvii) causing the Company each Managed Entity to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries partnerships and (ii) to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company each Managed Entity to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company each Managed Entity in complying with all regulatory requirements applicable to the Company such Managed Entity in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any Subsidiaries Managed Entities to make required tax filings and reports, including soliciting stockholders holders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations applicable to REITspartnerships;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company Managed Entities may be involved or to which the Company Managed Entities may be subject arising out of the Company’s day-to-day operationsoperations of the Managed Entities;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company Managed Entities to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to timecustomary;
(xxvixxiii) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company Managed Entities as the Board General Partner or the relevant management team of Directors a Managed Entity shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxiv) using commercially reasonable efforts to cause the Company Managed Entities to comply with all applicable laws.
(c) The Manager may enter into agreements with other parties, including its Affiliates, or direct the Managed Entities to enter into such agreements directly, for the purpose of engaging one or more parties for and on behalf of the Managed Entities to provide management and/or other services to the Managed Entities pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have businesses similar in type to the Managed Entities; provided that with respect to any agreements entered into with Affiliates of the Manager pursuant to which such Affiliates shall perform any obligations of the Manager under this Agreement and in respect of which the Manager receives the Management Fee, the Manager shall provide prompt notice of the terms of such agreement or arrangement to the Independent Directors, and further provided that any arrangement entered into directly by the Managed Entities with such other party to perform any obligations of the Manager under this Agreement shall result in a reduction of the Management Fee payable under this Agreement in the amount of the fees charged under such direct arrangement.
(d) As provided in SECTION 2(b)(v), the Manager may retain, for and on behalf, and at the sole cost and expense, of the CompanyPartnership or the Managed Entities, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the CompanyManaged Entities and the Business. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Partnership or the Managed Entities shall pay or reimburse the Manager or its Affiliates performing such services for the cost and expenses thereof; provided that such costs and reimbursements as to Affiliates of the Manager are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the General Partner, the Manager shall, at the sole cost and expense of the Partnership or the Managed Entities, prepare, or cause to be prepared, any reports and other information with respect to the Business as may be reasonably requested by the General Partner.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Partnership or the Managed Entities, all reports, financial or otherwise, with respect to the Managed Entities reasonably required by the General Partner in order for the Managed Entities to comply with their Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Managed Entities’ books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the General Partner to enable the General Partner to review the Business and compliance with the Guidelines and policies approved by the General Partner.
(h) Notwithstanding anything contained in this Agreement to the contrary, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Managed Entities in excess of that contained in any applicable Partnership Account or otherwise made available by the Managed Entities to be expended by the Manager hereunder or any other party with respect to the Managed Entities. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Partnership under SECTION 16(a) to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) Managers, members, partners, officers, employees or agents may serve as directors, officers, employees, agents, nominees or signatories for the Managed Entities, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the General Partner pursuant to the Partnership’s Governing Instruments. When executing documents or otherwise acting in such capacities for a Managed Entity, such persons shall use their respective titles in the Partnership or such other Managed Entity, to the extent that they are an officer of the Partnership or such other Managed Entity or shall use their respective titles in the Manager.
(j) The General Partner shall pass any and all necessary resolutions to provide for the delegation of its duties to the Manager under this Agreement (and to facilitate the delegation of duties to the Manager in respect of the other Managed Entities), and to permit such delegation to be approved or evidenced by acts of the Board of Directors, or by any certificate duly signed by any officer of the General Partner (or, as applicable, the officers or authorized persons of the other Managed Entities), to verify or confirm the authority of the Manager or any of its members, partners, officers, employees or agents authority to enter into agreements on behalf of and bind the Partnership (and each Managed Entity).
(k) In performing its duties under this Section SECTION 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s Managed Entities’ sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management Agreement (Steel Partners Holdings L.P.)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager as its exclusive agent to manage manage, operate and administer the investments assets, liabilities and day-to-day operations business of the Company and its Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by herein in accordance with the Company for such purposes as set forth in Section 7 hereofprovisions of this Agreement. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it in writing including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may include, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsinvestment criteria and parameters for Investments, borrowings and operations operations, any modifications to which shall be approved by a majority of the Company Independent Directors (such policy guidelines as initially approved, as the same may be modified with such approval, the “Guidelines”) and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the for approval of by the Board of Directors;
(ii) investigating, analyzing and selecting possible Investment opportunities and originating, acquiring, financing, retaining, selling, negotiating for prepayment, restructuring or disposing of Company Investments consistent with the Guidelines;
(iii) serving as the Company’s consultant with respect to any prospective investment by the selectionCompany and any sale, purchase, monitoring and exchange or other disposition of any Investment by the Company’s investments, conducting negotiations on behalf of the Company with sellers and purchasers and their respective agents, representatives and investment bankers;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that which provide real estate, investment banking, securities mortgage brokerage, insurance, legal, accounting, transfer agent, registrar securities brokerage and other financial services and such other services as may be required relating to the Company’s operations or investments (or potential investments)Investments;
(ixv) coordinating and managing operations of any joint venture or co-investment interests held by the Company and conducting all matters with the joint venture or co-investment partners;
(vi) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xvii) administering the day-to-day operations of the Company and performing and supervising the performance of such other administrative functions necessary in the management of the Company as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiviii) communicating on behalf of the Company with the holders of any equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiiix) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiix) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, consistent with such strategies, as so modified from time to time, with the Company’s qualification status as a REIT REIT, and with the Investment Guidelines;
(xivxi) counseling the Company regarding the maintenance of its qualification as a REIT and the maintenance of such status, monitoring the Company’s compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(xvxii) counseling the Company regarding the maintenance of its exemption exclusion from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause the Company to maintain such exclusion from status as an investment company under the Investment Company Act;
(xvixiii) assisting the Company in developing criteria for asset purchase commitments that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to mortgage loans, real estate, real estate securities, other real estate-related assets and non-real estate related assets;
(xiv) furnishing reports and statistical and economic research to the Company regarding the Company’s activities and services performed for the Company or its Subsidiaries, if any, by the ManagerManager or the Subsidiaries;
(xviixv) monitoring the operating performance of the Company’s investments Investments and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviiixvi) investing and re-investing any monies moneys and securities of the Company (including investing in short-term investmentsInvestments pending investment in other Investments, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxvii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, and non-taxable REIT subsidiaries and (ii) causing the Company to conduct quarterly compliance reviews with respect thereto;
(xxxviii) causing the Company to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxixix) assisting the Company in complying with all regulatory requirements applicable to the Company in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxiixx) taking all necessary actions to enable the Company and any its Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under provided by the provisions of the Code and U.S. Treasury regulations Regulations applicable to REITs;
(xxiiixxi) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiii) advising the Company with respect to obtaining appropriate warehouse or other financings for its assets;
(xxiv) advising the Company with respect to and structuring long-term financing vehicles for the Company’s portfolio of assets, and offering and selling securities publicly or privately in connection with any such structured financing;
(xxv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxvi) using commercially reasonable efforts to cause the Company to comply with all applicable laws. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to the Investments. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, to the extent applicable, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) The Manager may enter into agreements with other parties, including its Affiliates, for the purpose of engaging one or more parties for and on behalf, and at the sole cost and expense, of the Company to provide property management, asset management, leasing, development and/or other services to the Company (including, without limitation, Portfolio Management Services and Monitoring Services) pursuant to agreement(s) with terms which are then customary for agreements regarding the provision of services to companies that have assets similar in type, quality and value to the assets of the Company; provided, that (i) any such agreements entered into with Affiliates of the Manager shall be (A) on market terms and conditions and (B) to the extent the same do not fall within the provisions of the Guidelines, approved by a majority of the Independent Directors, (ii) with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors) and (B) the Manager shall remain liable for the performance of such Portfolio Management Services, and (iii) with respect to Monitoring Services, any such agreements shall be subject to the Company’s prior written approval (and approved by a majority of the Independent Directors).
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or Affiliates. The Company shall pay or reimburse the Manager or its Affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any Investment, reports and other information with respect to such Investment as may be reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments, or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with the Guidelines and policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional moneys is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to Section 9 in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Appointment and Duties of the Manager. (a) The Company and each of the Subsidiaries hereby appoints the Manager to manage the investments and day-to-day operations assets of the Company Company, the Series and its Subsidiaries, the Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The parties acknowledge that (i) the Manager is registered under the Advisers Act; (ii) the Manager performs its services for the Company, the Series and the Subsidiaries through the personnel and facilities of Apollo; (iii) the Manager has no, and will have no, employees or other persons acting on its behalf other than (A) officers, partners and employees of Apollo, or (B) other persons who are subject to the supervision and control of Apollo; and (iv) all of the investment advisory activities of the Manager are subject to the Advisers Act and the rules thereunder.
(c) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the Company, the Series and the Subsidiaries, at all times will shall be subject to the supervision and direction of the Board of Directors and will shall have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company Company, the Series and will the Subsidiaries. The Manager shall perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company Company, the Series and the Subsidiaries as may be appropriate, which may includeincluding, without limitation:
(i) forming i. originating and maintaining the Investment Committeerecommending opportunities to acquire Asset-Backed Finance Assets and to finance Asset-Backed Finance Assets, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance consistent with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification business objectives and strategy of the Company’s investment portfolio , the Series and the Company’s hedging Subsidiaries;
ii. monitoring and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as evaluating the Company’s consultant with respect to ’s, the periodic Series’ and the Subsidiaries’ Asset-Backed Finance Assets;
iii. analyzing and investigating potential dispositions of Asset-Backed Finance Assets, including identification of potential acquirers and evaluations of offers made by such potential acquirers;
iv. structuring of acquisitions and financings of Asset-Backed Finance Assets;
v. identifying bank and institutional sources of financing for the Company, each Series and its Asset-Backed Finance Assets, arrangement of appropriate introductions and marketing of financial proposals;
vi. supervising the preparation and review of all documents required in connection with the investmentsacquisition, borrowings and operations disposition or financing of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsAsset-Backed Finance Asset;
(iii) serving as vii. administering the Company’s consultant with respect to the selection, purchase, monitoring day-to-day operations and disposition of the Company’s investments;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect to obtaining appropriate financing for its investments;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(x) performing and supervising the performance of such other administrative functions necessary in to the management of the Company and the Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations of the Company, the Series and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative functions, in each case, for which the Company shall reimburse the Manager;
viii. monitoring the performance of Asset-Backed Finance Assets and, where appropriate, providing advice regarding the management of Asset-Backed Finance Assets;
ix. arranging and coordinating the services of other professionals and consultants, including Apollo personnel;
x. making recommendations to the Company with respect to the Company’s repurchase offers;
xi. originating, recommending opportunities to form, acquiring, structuring, coordinating and assisting with managing operations of any joint venture or Asset-Backed Finance Assets held by the Company, the Series or the Subsidiaries and conducting all matters with the joint venture or other partners consistent with the business objectives and strategies of the Company (xiincluding, for the avoidance of doubt, the power to structure joint ventures that provide that any controlling interest of the Company shall be forfeited upon termination of this Agreement);
xii. advising the Company, the Series and the Subsidiaries on, preparing, negotiating and entering into, on behalf of the Company, the Series or the Subsidiaries, applications and agreements relating to programs established by the U.S. government;
xiii. arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the Company’s, the Series’ and the Subsidiaries’ business;
xiv. communicating on behalf of the Company and the Subsidiaries with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xii) xv. counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiii) xvi. evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the Company, the Series and the Subsidiaries, consistent with such strategies, strategies as so modified from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) xvii. counseling the Company and the Subsidiaries regarding the maintenance of its qualification as a REIT and monitoring compliance with their exclusion from the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xv) counseling the Company regarding the maintenance definition of its exemption from status as an investment company under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexclusion and using commercially reasonable efforts to cause them to maintain such exclusion from such status;
(xvi) xviii. furnishing reports and statistical and economic research to the Company and the Subsidiaries regarding the their activities and services performed for the Company or its SubsidiariesCompany, if any, the Series and the Subsidiaries by the Manager;
(xvii) xix. monitoring the operating performance of the Company’s investments Asset-Backed Finance Assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) xx. investing and re-investing reinvesting any monies moneys and securities of the Company Company, the Series and the Subsidiaries (including investing in short-term investmentsAsset-Backed Finance Assets pending the acquisition of other Asset-Backed Finance Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders shareholders and partners members of the CompanyCompany and the Subsidiaries) and advising the Company and the Subsidiaries as to its their capital structure and capital-raising activitiescapital raising;
(xix) causing xxi. assisting the Company to retain and the Subsidiaries in retaining qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting systems and procedures, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xx) causing xxii. assisting the Company and the Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) xxiii. assisting the Company Company, the Series and the Subsidiaries in complying with all regulatory requirements applicable to the Company them in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act or the Securities Act;
(xxii) xxiv. assisting the Company, the Series and the Subsidiaries in taking all necessary actions action to enable the Company and any Subsidiaries them to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company may be involved or to which the Company may be subject arising out of the Company’s day-to-day operations;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(; xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxvii) using commercially reasonable efforts to cause the Company to comply with all applicable laws.
(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Actplacing, or (iii) would violate any lawfacilitating the placement of, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered all orders pursuant to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to acquisition determinations for the Company, the Board of Directors, Series and the Subsidiaries either directly with the issuer or the Company’s stockholders for any act with a broker or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company dealer (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement affiliated broker or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.dealer);
Appears in 1 contract
Samples: Operating Agreement (Apollo Asset Backed Credit Co LLC)
Appointment and Duties of the Manager. (a) The Company hereby appoints the Manager to manage the investments assets and day-to-day operations of the Company and its Subsidiaries, Subsidiaries subject at all times to the further terms and conditions set forth in this Agreement and to the supervision of, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the investments assets and the day-to-day operations of the CompanyCompany and its Subsidiaries, at all times will be subject to the supervision and direction of the Company’s Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and its Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments assets and operations of the Company as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant with respect to the periodic review of the investmentsacquisition criteria and parameters for Acquisitions, borrowings borrowings, financing transactions, and operations operations;
(ii) investigation, analysis, valuation and selection of the Company and other policies and recommendations with respect thereto, including, without limitation, the Investment Guidelines, in each case subject to the approval of the Board of DirectorsAcquisition opportunities;
(iii) serving as the Company’s consultant with respect to prospective Acquisitions by the selectionCompany and dispositions of assets, purchaseconducting negotiations with brokers, monitoring sellers and disposition purchasers and their respective agents and representatives, investment bankers and owners of the Company’s investmentsprivately and publicly held companies;
(iv) serving as engaging and supervising independent contractors that provide services relating to the Company or any of its Subsidiaries or the Company’s consultant with respect to decisions regarding any financingsassets, hedging activities including, but not limited to, investment banking, legal or borrowings undertaken by the Company or its Subsidiariesregulatory advisory, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectivestax advisory, due diligence, accounting advisory, securities brokerage, brokerage, and (2) advising other financial, brokerage and consulting services as the Company with respect Manager determines from time to obtaining appropriate financing for its investmentstime is advisable;
(v) advising negotiating the Company with respect to incentive plans that the Company may establish for the Independent Directorssale, exchange or other disposition of any asset;
(vi) purchasing coordinating and financing investments on behalf managing operations of any joint venture or co-investment interests held by the CompanyCompany or any of its Subsidiaries and conducting all matters with the joint venture or co-investment partners;
(vii) providing coordinating and supervising, all matters related to the Company Company’s or any of its Subsidiaries’ assets, including the leasing and/or sale and management of such assets and retaining agents, managers or other advisors in connection with portfolio managementsuch coordination and supervision;
(viii) engaging and supervising, on behalf of the Company and at the Company’s expense, independent contractors that provide real estate, investment banking, securities brokerage, insurance, legal, accounting, transfer agent, registrar and such other services as may be required relating to the Company’s operations or investments (or potential investments);
(ix) providing executive and administrative personnel, office space and office services required in rendering services to the Company;
(xix) administering the day-to-day operations of the Company and its Subsidiaries and performing and supervising the performance of such other administrative functions necessary in the management of the Company and its Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations and maintenance of appropriate information technology computer services to perform such administrative functions;
(xix) communicating on behalf of the Company with the past, current and prospective holders of any equity or debt securities of the Company and its Subsidiaries as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiixi) counseling the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixii) evaluating and recommending to the Company Board of Directors modifications to any hedging strategies in effect on the date hereof and engaging in hedging activities on behalf of the Companyactivities, consistent with such strategies, as so modified in effect from time to time, with the Company’s qualification as a REIT and with the Investment Guidelines;
(xiv) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunder;
(xvxiii) counseling the Company regarding the maintenance of its exemption from status as an investment company under the Investment Company Act and monitoring compliance with the requirements for maintaining an exemption from that Act;
(xiv) assisting the Company in developing criteria that are specifically tailored to the Company’s investment objectives and making available to the Company its knowledge and experience with respect to its target assets;
(xv) representing and making recommendations to the Company in connection with the purchase and finance, and commitment to purchase and finance, of its target assets, and in connection with the sale and commitment to sell such exemptionassets;
(xvi) furnishing reports and statistical and economic research to the Company regarding the activities and services performed for the Company or its Subsidiaries, if any, by the Manager;
(xvii) monitoring the operating performance of the Company’s investments and its Subsidiaries’ assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance performance, valuation and budgeted or projected operating results;
(xviiixvii) investing and re-investing any monies moneys and securities of the Company and its Subsidiaries (including investing in short-term investments, pending investment in Acquisitions, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders shareholders and partners of the Company) and advising the Company as to its capital structure and capital-raising activitiescapital raising;
(xixxviii) causing the Company to retain qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect thereto;
(xxxix) causing the Company and its Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xx) taking all necessary actions to enable the Company and its Subsidiaries to make required tax filings and reports, including soliciting shareholders for required information to the extent provided by the provisions of the Code;
(xxi) assisting the Company and its Subsidiaries in complying with all regulatory requirements applicable to the Company thereto in respect of its business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, documents required under the Exchange Act or the Securities Act;
(xxii) taking all necessary actions to enable the Company and any Subsidiaries to make required tax filings and reports, including soliciting stockholders for required information to the extent necessary under the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company or any of its Subsidiaries may be involved or to which the Company or any of its Subsidiaries may be subject arising out of the Company’s or any of its Subsidiaries’ day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxiv) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the Company;
(xxvxxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company and its Subsidiaries to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxiv) performing such other services as may be required from time to time for the management and other activities relating to the assets of the Company and its Subsidiaries as the Board of Directors and Manager shall reasonably request agree from time to time or as the Manager shall deem appropriate under the particular circumstances; and;
(xxviixxv) using commercially reasonable efforts to cause the Company to comply with all applicable laws; and
(xxvi) traveling in connection with the performance of any services or activities relating to the Company’s and its Subsidiaries’ assets, operations, Acquisitions or investment analysis. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company with respect to Acquisitions. Such services will include, but not be limited to, consulting with the Company on the purchase and sale of, and other investment opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company with respect to any services provided by third parties, which the Manager determines are material to the performance of the business.
(c) The Manager may enter into agreements with other parties, including its affiliates, including to provide the services above, provided, that any such agreements entered into with affiliates of the Manager shall be (A) on terms no more favorable to such affiliate than could be obtained from a third party on an arm’s length basis and (B) to the extent the same do not fall within policies approved by the Board of Directors, approved by a majority of the Independent Directors to the extent required by any Board policy; provided, however, without the prior approval of a majority of the Independent Directors, the Manager may not enter into agreements with any party, other than an affiliate, to provide the investment management, investment advisory or similar services. Notwithstanding the foregoing, the Manager shall be permitted to enter into agreements with unaffiliated parties pursuant to Section 2(b)(ii), or otherwise, to perform valuation services with respect to any assets as may be deemed necessary or advisable by the Manager.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons accountants, legal counsel, tax counsel, appraisers, insurers, brokers or business developers, transfer agents, registrars, developers, investment banks, financial advisors, underwriters, asset managers, banks and firms referred to in Section 7(b) hereof other lenders and others as the Manager deems necessary or advisable in connection with the management and operations of the Company. Notwithstanding anything contained herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its employees or affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents or any affiliate of the Manager). The Company shall pay or reimburse the Manager or its affiliates performing such services for the cost thereof; provided, that such costs and reimbursements are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s‑length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to be prepared, with respect to any investment, (i) reports and information on the Company’s operations and asset performance and (ii) other information reasonably requested by the Company.
(f) The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the Company, all reports, financial or otherwise, with respect to the Company reasonably required by the Board of Directors in order for the Company to comply with its Governing Instruments or any other materials required to be filed with any governmental body or agency, and shall prepare, or cause to be prepared, all materials and data necessary to complete such reports and other materials including, without limitation, an annual audit of the Company’s books of account by a nationally recognized independent accounting firm.
(g) The Manager shall prepare regular reports for the Board of Directors to enable the Board of Directors to review the Company’s Acquisitions, portfolio composition and characteristics, credit quality, performance and compliance with policies approved by the Board of Directors.
(h) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions which result in the right of the Company to terminate this Agreement pursuant to Section 15 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 13(a) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
(i) In performing its duties under this Section 2, the Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Manager at the Company’s sole cost and expenseManager.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of the Company as a REIT under the Code or the Company’s status as an entity excluded from investment company status under the Investment Company Act, or (iii) would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.
(e) The Company (including the Board of Directors) agrees to take all actions reasonably required to permit and enable the Manager to carry out its duties and obligations under this Agreement, including, without limitation, all steps reasonably necessary to allow the Manager to file any registration statement or other filing required to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available to the Manager all resources, information and materials reasonably requested by the Manager to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect to the Company. If the Manager is not able to provide a service, or in the reasonable judgment of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (and shall not be in breach of this Agreement) until the applicable approval has been obtained.
Appears in 1 contract
Samples: Management and Advisory Agreement (FTAI Infrastructure Inc.)
Appointment and Duties of the Manager. (a) The Effective upon the Effective Date, the Company and each of the Subsidiaries hereby appoints appoint the Manager to manage the investments and day-to-day operations of the Company and its Subsidiaries, Assets subject at all times to the further terms and conditions set forth in this Agreement and to the supervision ofAgreement, and such further limitations or parameters as may be imposed from time to time by, the Board of Directors. The Manager hereby accepts such appointment and agrees to use its commercially reasonable efforts to perform each of the duties set forth herein, provided that funds are made available by the Company for such purposes as set forth in Section 7 hereof. The appointment of the Manager shall be exclusive to the ManagerManager except to the extent that the Manager otherwise agrees, in its sole and absolute discretion, and except to the extent that the Manager elects, in its sole and absolute discretion, in accordance with pursuant to the terms of this Agreement, to cause the duties of the Manager as set forth herein hereunder to be provided by third parties.
(b) The Manager, in the performance of its capacity as manager of the investments and the operations of the Companyduties hereunder, will at all times will be subject to the supervision and direction of the Board of Directors and will have only such functions and authority as the Board of Directors Company may delegate to it, it including, without limitation, the functions and authority identified herein and delegated to the Manager hereby. The Manager will be responsible for the day-to-day operations of the Company and the Subsidiaries and will perform (or cause to be performed) such services and activities relating to the investments Assets and operations of the Company and the Subsidiaries as may be appropriate, which may includeincluding, without limitation:
(i) forming and maintaining the Investment Committee, which will have the following responsibilities: (A) proposing the Investment Guidelines to the Board of Directors, (B) reviewing the Company’s investment portfolio for compliance with the Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted by the Board of Directors on a periodic basis, (D) reviewing the diversification of the Company’s investment portfolio and the Company’s hedging and financing strategies on a monthly basis, and (E) generally be responsible for conducting or overseeing the provision of the services set forth in this Section 2.
(ii) serving as the Company’s consultant and the Subsidiaries’ advisor with respect to the establishment and periodic review of the investmentsInvestment Guidelines and other parameters for the Company’s acquisitions of Assets, borrowings financing activities and operations operations;
(ii) investigating, analyzing and selecting possible opportunities and acquiring, financing, retaining, selling, restructuring or disposing of Assets consistent with the Investment Guidelines; it being understood and agreed that the Manager shall have the authority to cause the Company and its Subsidiaries to enter into any such transactions and agreements consisting of guaranties, indemnities and/or other policies and recommendations undertakings provided by the Company to third parties in connection with respect thereto, includingequity or debt investments held by direct or indirect Subsidiaries of the Company, without limitation, the Investment Guidelines, in each case subject to the approval of any separate action or authorization required by the Board of Directors;
(iii) serving as the Company’s consultant with respect to the selectionprospective acquisitions, purchasepurchases, monitoring and disposition sales or exchanges of Assets, conducting negotiations on behalf of the Company’s investmentsCompany and the Subsidiaries with sellers, purchasers, brokers and other counterparties and, if applicable, their respective agents and representatives, and determining the structure and terms of such transactions;
(iv) serving as the Company’s consultant with respect to decisions regarding any financings, hedging activities or borrowings undertaken by the Company or its Subsidiaries, including (1) assisting the Company in developing criteria for debt and equity financing that is specifically tailored to the Company’s investment objectives, and (2) advising the Company with respect on and negotiating and entering into, on behalf of the Company and the Subsidiaries, repurchase agreements, resecuritizations, securitizations, warehouse facilities, bank credit facilities (including term loans and revolving facilities), credit finance agreements, commercial papers, interest rate swap agreements and other hedging instruments and all other agreements and engagements required for the Company and the Subsidiaries to obtaining appropriate obtain financing for its investmentsand conduct their business;
(v) advising the Company with respect to incentive plans that the Company may establish for the Independent Directors;
(vi) purchasing and financing investments on behalf of the Company;
(vii) providing the Company with portfolio management;
(viii) engaging and supervising, on behalf of the Company and at the Company’s 's expense, independent contractors that contractors, advisors, consultants, attorneys, accountants and other service providers (which may include Affiliates of the Manager, subject to the terms hereof) to provide real estate, investment banking, mortgage brokerage, securities brokerage, insuranceother financial services, legaldue diligence services, accountingunderwriting review services, transfer agentlegal and accounting services, registrar and such all other services as may be required relating to the Assets and the Company’s operations or investments (or potential investments)operations;
(ixvi) coordinating and managing operations of co-investment interests or joint venture held by the Company and the Subsidiaries and conducting all matters with the co-investment partners or joint venture;
(vii) providing executive and administrative personnel, office space and office services required in rendering services to the CompanyCompany and the Subsidiaries;
(xviii) administering the day-to-day operations and performing and supervising the performance of such other administrative functions necessary in to the management of the Company and the Subsidiaries as may be agreed upon by the Manager and the Board of Directors, including, without limitation, the services in respect of any equity incentive plan the Company may establish for the Independent Directors, the collection of revenues and the payment of the Company’s debts and obligations of the Company and the Subsidiaries and maintenance of appropriate information technology computer services to perform such administrative functions;
(xiix) communicating on behalf of the Company and the Subsidiaries with the holders of any of their equity or debt securities of the Company as required to satisfy the reporting and other requirements of any governmental bodies or agencies or trading exchanges or markets and to maintain effective relations with such holders, including website maintenance, logo design, analyst presentations, investor conferences and annual meeting arrangements;
(xiix) counseling advising the Company in connection with policy decisions to be made by the Board of Directors;
(xiiixi) engaging one or more subadvisors with respect to the management of the Company, subject to the terms hereof;
(xii) evaluating and recommending to the Company Board of Directors hedging strategies and engaging in hedging activities on behalf of the CompanyCompany and the Subsidiaries, consistent with such strategies, strategies as so modified from time to time, with the Company’s 's qualification as a REIT and with the Investment Guidelines;
(xivxiii) counseling the Company regarding the maintenance of its qualification as a REIT and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and U.S. Treasury regulations promulgated thereunderRegulations thereunder and using commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(xvxiv) counseling the Company and the Subsidiaries regarding the maintenance of its exemption their exclusion from the status as of an investment company required to register under the Investment Company Act and Act, monitoring compliance with the requirements for maintaining such exemptionexemptions and using commercially reasonable efforts to cause them to maintain such exemptions from such status;
(xv) as frequently as the Manager may deem necessary or advisable, or at the direction of the Board of Directors, at the sole cost and expense of the Company and the Subsidiaries, prepare, or cause to be prepared, reports and other information with respect to any Asset;
(xvi) furnishing reports prepare, at the sole cost and statistical and economic research to expense of the Company regarding and the activities and services performed Subsidiaries, regular reports for the Company or its Board of Directors to enable the Board of Directors to review the Company's and the Subsidiaries' acquisitions, if anyportfolio composition and characteristics, credit quality, performance and the Manager’s services and compliance with the Investment Guidelines and any other policies approved by the ManagerBoard of Directors;
(xvii) monitoring the operating performance of the Company’s investments Assets and providing periodic reports with respect thereto to the Board of Directors, including comparative information with respect to such operating performance and budgeted or projected operating results;
(xviii) investing deploying and re-investing redeploying any monies moneys and securities of the Company and the Subsidiaries (including in acquiring short-term investmentsAssets pending the acquisition of other Assets, payment of fees, costs and expenses, or payments of dividends or distributions to stockholders and partners of the CompanyCompany and the Subsidiaries) and advising the Company and the Subsidiaries as to its their capital structure and capital-raising activitiescapital raising;
(xix) causing assisting the Company to retain and the Subsidiaries in retaining qualified accountants and legal counsel, as applicable, to (i) assist in developing appropriate accounting systems and procedures, internal controls and other compliance procedures and testing systems with respect to financial reporting obligations and compliance with the provisions of the Code applicable to REITs and, if applicable, taxable REIT subsidiaries and (ii) to conduct quarterly compliance reviews with respect thereto;
(xx) causing assisting the Company and the Subsidiaries to qualify to do business in all applicable jurisdictions in which such qualification is required and to obtain and maintain all appropriate licenses;
(xxi) assisting the Company and the Subsidiaries in complying with all legal and regulatory requirements applicable to the Company them in respect of its their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act applicable law or the Securities Actby stock exchange requirements;
(xxii) assisting the Company and the Subsidiaries in taking all necessary actions action to enable the Company and any Subsidiaries them to make required tax filings and reports, complying with any tax audits and assisting with any tax controversy, including soliciting stockholders for required information to the extent necessary under required by the provisions of the Code and U.S. Treasury regulations applicable to REITs;
(xxiii) placing, or facilitating the placement of, all orders pursuant to the Manager's investment determinations for the Company and the Subsidiaries, either directly with the issuer or with a broker or dealer (including any affiliated broker or dealer);
(xxiv) handling and resolving all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) on the Company's and/or the Subsidiaries' behalf in which the Company and/or the Subsidiaries may be involved or to which the Company they may be subject arising out of the Company’s their day-to-day operationsoperations (other than with the Manager or its Affiliates), subject to such limitations or parameters as may be imposed from time to time by the Board of Directors;
(xxivxxv) using commercially reasonable efforts to cause expenses incurred by the Company and the Subsidiaries or on their behalf to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvi) arranging marketing materials, advertising, industry group activities (such as conference participations and industry organization memberships) and other promotional efforts designed to promote the business of the CompanyCompany and the Subsidiaries;
(xxv) using commercially reasonable efforts to cause expenses incurred by or on behalf of the Company to be commercially reasonable or commercially customary and within any budgeted parameters or expense guidelines set by the Board of Directors from time to time;
(xxvixxvii) performing such other services as may be required from time to time for in connection with the management and other activities relating to the assets of the Company Assets and the Company’s operations as the Board of Directors shall reasonably request or the Manager shall deem appropriate under the particular circumstances; and
(xxviixxviii) using commercially reasonable efforts to cause the Company to comply with all applicable lawslaws and regulations. Without limiting the foregoing, the Manager will perform portfolio management services (the “Portfolio Management Services”) on behalf of the Company and the Subsidiaries with respect to the Assets. Such services will include, but not be limited to, consulting with the Company and the Subsidiaries on the purchase and sale of, and other opportunities in connection with, the Company’s portfolio of assets; the collection of information and the submission of reports pertaining to the Company’s assets, interest rates and general economic conditions; periodic review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between the Company and the Subsidiaries and banking, mortgage banking, investment banking and other parties with respect to the purchase, financing and disposition of assets; and other customary functions related to portfolio management. Additionally, the Manager will perform monitoring services (the “Monitoring Services”) on behalf of the Company and the Subsidiaries with respect to any loan servicing activities provided by third parties. Such Monitoring Services will include, but not be limited to, negotiating servicing agreements; acting as a liaison between the servicers of the assets and the Company and the Subsidiaries; review of servicers’ delinquency, foreclosure and other reports on assets; supervising claims filed under any insurance policies; and enforcing the obligation of any servicer to repurchase assets.
(c) For the period and on the terms and conditions set forth in this Agreement, the Company and each of the Subsidiaries hereby constitutes, appoints and authorizes the Manager, without any further action or authorization required by the Board of Directors, as its true and lawful agent and attorney-in-fact, in its name, place and stead, to negotiate, execute, deliver and enter into such agreements, instruments, documents and authorizations on their behalf, on such terms and conditions as the Manager, acting in its sole and absolute discretion, deems necessary or appropriate. This power of attorney is deemed to be coupled with an interest.
(d) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company, such services of the persons and firms referred to in Section 7(b) hereof service providers as the Manager deems necessary or advisable in connection with the management and operations of the Company. In performing its duties under this Section 2Company and the Subsidiaries, which may include Affiliates of the Manager; provided, however, that (i) any such services provided by Affiliates of the Manager shall be entitled (A) on terms no more favorable to rely reasonably such Affiliate than would be obtained from a third party on qualified experts an arm’s-length basis and professionals (including, without limitation, accountants, legal counsel and other professional service providersB) hired by to the Manager at extent the Company’s sole cost and expense.
(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is same do not in compliance with fall within the provisions of the Investment Guidelines, approved by a majority of the Independent Directors, (ii) would adversely affect the qualification of the Company as a REIT under the Code or with respect to Portfolio Management Services, (A) any such agreements shall be subject to the Company’s status as an entity excluded from investment company status under prior written approval and (B) the Investment Company ActManager shall remain liable for the performance of such Portfolio Management Services, or and (iii) would violate with respect to Monitoring Services, any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or of any exchange on which the securities of the Company may such agreements shall be listed or that would otherwise not be permitted by subject to the Company’s Governing Instruments. If the Manager is ordered to take any action by the Board of Directors, the Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, neither the Manager nor any of its Affiliates (including American Capital) shall be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or omission by the Manager or any of its Affiliates, except as provided in Section 8 of this Agreementprior written approval.
(e) The Company (including To the Board of Directors) agrees to take all actions reasonably required to permit and enable extent that the Manager to carry out its duties and obligations under this Agreementdeems necessary or advisable, including, without limitation, all steps reasonably necessary to allow the Manager may, from time to file any registration statement time, retain one or other filing required more entities to be made under the Securities Act, Exchange Act, Nasdaq, Code or other applicable law, rule or regulation on behalf of the Company in a timely manner. The Company further agrees to use commercially reasonable efforts to make available provide sub-advisory services to the Manager all resources, information and materials reasonably requested by the Manager in order to enable the Manager to satisfy its obligations hereunder, including its obligations to deliver financial statements and any other information or reports with respect provide the services to the Company. If Company and the Subsidiaries specified by this Agreement; provided, however, that any such sub-advisory agreement (i) shall be on terms and conditions substantially identical to the terms and conditions of this Agreement or otherwise not adverse to the Company and the Subsidiaries and (ii) shall be approved by a majority of the Independent Directors.
(f) The Manager may retain, for and on behalf and at the sole cost and expense of the Company and the Subsidiaries, such services of asset monitors, servicers, accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, investment banks, financial advisors, due diligence firms, underwriting review firms, banks and other lenders and others as the Manager is not able to provide a service, deems necessary or advisable in connection with the reasonable judgment management and operations of the Manager it is not prudent to provide a service, without the approval of the Board of Directors, as applicable, then the Manager shall be excused from providing such service (Company and shall not be in breach of this Agreement) until the applicable approval has been obtained.the
Appears in 1 contract
Samples: Management Agreement (Western Asset Mortgage Capital Corp)
