Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the Charter, the Advisor undertakes to use its commercially reasonable efforts to: (a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to: (i) locating, analyzing and selecting potential investments in Real Estate Assets; (ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions; (iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and (iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assets. (b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company; (c) Serve as the Company’s investment advisor in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies; (d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company; (e) [Reserved]; (f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager; (g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget; (h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties; (i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments; (j) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities of the Company; (k) On behalf of the Company, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance; (l) At the direction of the Board of Directors, invest and reinvest any money of the Company; (m) Provide the Company with all necessary cash management services; (n) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations; (o) Procure on behalf of the Company office space, equipment and personnel as required for the performance of the foregoing services as advisor; (p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors; (q) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company; (r) Prepare on behalf of the Company, or engage independent professionals to prepare, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals; (s) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company; (t) Undertake communications with Stockholders in accordance with applicable law and the Charter; and (u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 4 contracts
Samples: Advisory Agreement, Advisory Agreement (Apartment Trust of America, Inc.), Advisory Agreement (Apartment Trust of America, Inc.)
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated to provide shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company with (the “Property Acquisition Service Agreement”), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a “Proposed Property”) will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase any Class A income producing multi-family property such Proposed Property which satisfies the Company’s investment objectives is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:
i) the effect of the acquisition on the diversification of each entity’s portfolio; (ii) the amount of funds available for investment;
ii) cash flow; and
iii) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of Affiliates which present potential conflicts with the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes set forth in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assetsProperty Acquisition Service Agreement.
(b) Manage the Company’s day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site Cooperate with the Management Agent in connection with property visits management services and other activities relating to some or all (the Company’s assets as the Advisor deems reasonably necessary) of shall deem appropriate in the Properties particular circumstances, subject to inspect the physical condition of requirement that the Properties Advisor or the Management Agent, as the case may be, qualifies as an “independent contractor” as that phrase is used in connection with applicable laws, rules and to evaluate the performance of the Property Managerregulations affecting REITs that own Real Property;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(if) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwriter or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(pl) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an “Investment Advisor,” as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an “Investment Company,” as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 2 contracts
Samples: Advisory Agreement (Inland Western Retail Real Estate Trust Inc), Advisory Agreement (Inland Western Retail Real Estate Trust Inc)
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the Charter, the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved]Act as property manager or cooperate with a third party or affiliated Property Manager in connection with property management services and other activities relating to the Company’s assets, subject to the requirement that the Advisor, its Affiliate or the Property Manager, as the case may be, qualifies as an “independent contractor” as the phrase is used in connection with applicable laws, rules and regulations affecting REITs that own real property;
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(j) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities of the Company;
(k) On behalf of the Company, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(l) At the direction of the Board of Directors, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(n) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(o) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisor;
(p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors;
(q) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(r) Prepare on behalf of the Company, or engage independent professionals to prepare, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(s) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 2 contracts
Samples: Advisory Agreement (Grubb & Ellis Apartment REIT, Inc.), Advisory Agreement (Grubb & Ellis Apartment REIT, Inc.)
Duties of Advisor. The Company hereby continues to retain the Advisor shall consult with as the advisor of the Company to perform the services hereinafter set forth, and shallthe Advisor hereby accepts such appointment, at subject to the request of the Board of Directors or the officers of the Company, furnish advice terms and recommendations with respect to all aspects of the business and affairs of the Companyconditions hereinafter set forth. In generalperformance of this undertaking, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject subject to the supervision of the Board of Directors Trustees and consistent with the provisions of the CharterCompany's Declaration of Trust, the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited toshall:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging obtain for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to furnish and/or supervise the extent necessary, performing all functions services necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative any ministerial functions necessary in connection with the management of the day-to-day operations of the Company as may be agreed upon subject to the supervision of the Trustees;
(ii) seek out and present to the Company, whether through its own efforts or those of third parties retained by it, suitable and a sufficient number of investment opportunities which are consistent with the investment objectives and policies of the Company ("Company Investment Policy")as adopted by the Advisor Trustees from time to time; the currently effective Company Investment Policy is set forth on Exhibit A;
(iii) exercise absolute discretion, subject to the Trustees' review, in decisions to originate, acquire, retain, sell or negotiate for the prepayment or restructuring of mortgages and other investments of the Company;
(civ) Serve recommend investment opportunities consistent with the Company Investment Policy and negotiate on behalf of the Company with respect to potential investments or the disposition thereof;
(v) establish and manage the Company's securitization and capital markets programs;
(vi) upon request, cause an Affiliate to serve as the owner of record for the Company’s investment advisor 's investments if such Affiliate is qualified to do so and in connection with policy decisions that capacity to be made by the Board hold escrows, if applicable, on behalf of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data mortgagors in connection with the Company’s investments and investment policiesservicing of mortgages, which it may deposit with various banks including banks with which it may be affiliated;
(dvii) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by obtain for the Company from time to time, and enter into contracts with, retain and supervise such other services performed by such parties in connection with investments which have been or as may be acquired required in acquiring or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the fundsfunds of the Company, paying the debts and fulfilling the obligations of the Company Company, and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage mortgages and other liens and security interests securing investments;
(jviii) Assist in negotiations on behalf of obtain for the Company with investment banking firms such services as may be required for property management, mortgage brokerage and servicing, and other institutions or investors for public or private sales of securities of activities relating to the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities investment portfolio of the Company;
(kix) On behalf evaluate, structure and negotiate potential prepayments or sales of the Companymortgages and other investments and, maintainif applicable, coordinate with respect to any Real Estate Assets government agencies and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurancegovernment sponsored entities in connection therewith;
(lx) At the direction of the Board of Directorsfrom time to time, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(n) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(o) Procure on behalf of the Company office space, equipment and personnel or as required for the performance of the foregoing services as advisor;
(p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors;
(q) As requested by the CompanyTrustees, make reports to the Company of as to its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(r) Prepare on behalf of the Company, or engage independent professionals to prepare, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(s) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Charterservices; and
(uxi) Enter into ancillary agreements with the Sponsor and do all things necessary to assure its Affiliates ability to arrange for render the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated contemplated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 1 contract
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated to provide shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company with (the "Property Acquisition Service Agreement"), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a "Proposed Property") will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase any Class A income producing multi-family property such Proposed Property which satisfies the Company’s investment objectives is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:
i) the effect of the acquisition on the diversification of each entity's portfolio; (ii) the amount of funds available for investment;
ii) cash flow; and
iii) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of Affiliates which present potential conflicts with the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes set forth in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assetsProperty Acquisition Service Agreement.
(b) Manage the Company’s 's day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s 's investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s 's investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site Cooperate with the Management Agent in connection with property visits management services and other activities relating to some or all (the Company's assets as the Advisor deems reasonably necessary) of shall deem appropriate in the Properties particular circumstances, subject to inspect the physical condition of requirement that the Properties Advisor or the Management Agent, as the case may be, qualifies as an "independent contractor" as that phrase is used in connection with applicable laws, rules and to evaluate the performance of the Property Managerregulations affecting REITs that own Real Property;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(if) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwriter or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(pl) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an "Investment Advisor," as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an "Investment Company," as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 1 contract
Samples: Advisory Agreement (Inland Western Retail Real Estate Trust Inc)
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated to provide shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company with (the "Property Acquisition Service Agreement"), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a "Proposed Property") will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase any Class A income producing multi-family property such Proposed Property which satisfies the Company’s investment objectives is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:
i) the effect of the acquisition on the diversification of each entity's portfolio; (ii) the amount of funds available for investment;
ii) cash flow; and
iii) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of Affiliates which present potential conflicts with the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes set forth in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assetsProperty Acquisition Service Agreement.
(b) Manage the Company’s 's day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s 's investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s 's investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site Cooperate with the Management Agent in connection with property visits management services and other activities relating to some or all (the Company's assets as the Advisor deems reasonably necessary) of shall deem appropriate in the Properties particular circumstances, subject to inspect the physical condition of requirement that the Properties Advisor or the Management Agent, as the case may be, qualifies as an "independent contractor" as that phrase is used in connection with applicable laws, rules and to evaluate the performance of the Property Managerregulations affecting REITs that own Real Property;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(if) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwater or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(p1) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an "Investment Advisor", as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an "Investment Company", as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 1 contract
Samples: Advisory Agreement (Inland Western Retail Real Estate Trust Inc)
Duties of Advisor. The During the term of this Agreement, Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the Charter, the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract such regular and customary consulting advice as is reasonably requested by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select provided that Advisor shall not be required to undertake duties not reasonably within the scope of the financial advisory or investment banking services contemplated by this Agreement. It is understood and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified acknowledged by the Company from time to timeparties that the value of Advisor's advice is not readily quantifiable, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may that Advisor shall be acquired or disposed of by obligated to render advice upon the Company;
(e) [Reserved];
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, actin good faith, or obtain but shall not be obligated to spend any specific amount of time in so doing. Advisor's duties may include, but will not necessarily be limited to, providing recommendations concerning the services of others to act, as attorney-in-fact or agent of following financial and related matters:
a. Disseminating information about the Company to the investment community at large;
b. Rendering advice and assistance in making, acquiring connection with the preparation of annual and disposing of investments, disbursing interim reports and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of press releases;
c. Assisting in the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments's financial public relations;
(j) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing d. Arranging, on behalf of the Company, but at appropriate times, meetings with securities analysts of major regional investment banking firms;
e. Rendering advice with regard to internal operations, including:
(1) the formation of corporate goals and their implementation;
(2) the Company's financial structure and its divisions or subsidiaries;
(3) securing, when and if necessary and possible, additional financing through banks and/or insurance companies; and
(4) corporate organization and personnel; and
f. Rendering advice with regard to any of the following corporate finance matters:
(1) changes in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities capitalization of the Company;
(k2) On behalf changes in the Company's corporate structure;
(3) redistribution of shareholdings of the Company, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance's stock;
(l4) At the direction offerings of the Board of Directors, invest and reinvest any money of the Companysecurities in public transac- tions;
(m5) Provide the Company with all necessary cash management servicessales of securities in private transactions;
(n6) Supervise alternative uses of corporate assets;
(7) structure and use of debt; and
(8) sales of stock by insiders pursuant to Rule 144 or otherwise. In addition to the preparation and filing and distribution of returns and reports foregoing, Advisor agrees to governmental agencies and furnish advice to investors and act on behalf of the Company in connection with investor relations;
(oi) Procure on behalf the acquisition and/or merger of or with other companies, divestiture or any other similar transaction, or the sale of the Company office spaceitself (or any significant percentage, equipment assets, subsidiaries or affiliates thereof), and personnel as required (ii) bank financings or any other financing from financial institutions (including but not limited to lines of credit, performance bonds, letters of credit, loans or other financings not provided for the performance of the foregoing in paragraph 4 hereof). Advisor shall render such other financial advisory and investment and/or investment banking services as advisor;
(p) Advise the Company of the operating results of may from time to time be agreed upon by Advisor and the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors;
(q) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(r) Prepare on behalf of the Company, or engage independent professionals to prepare, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(s) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Financial Advisory and Investment Banking Agreement (Worldwide Entertainment & Sports Corp)
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated to provide shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company with (the “Property Acquisition Service Agreement”), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a “Proposed Property”) will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase any Class A income producing multi-family property such Proposed Property which satisfies the Company’s investment objectives is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:
i) the effect of the acquisition on the diversification of each entity’s portfolio; (ii) the amount of funds available for investment;
ii) cash flow; and
iii) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of Affiliates which present potential conflicts with the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes set forth in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assetsProperty Acquisition Service Agreement.
(b) Manage the Company’s day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site Cooperate with the Management Agent in connection with property visits management services and other activities relating to some or all (the Company’s assets as the Advisor deems reasonably necessary) of shall deem appropriate in the Properties particular circumstances, subject to inspect the physical condition of requirement that the Properties Advisor or the Management Agent, as the case may be, qualifies as an “independent contractor” as that phrase is used in connection with applicable laws, rules and to evaluate the performance of the Property Managerregulations affecting REITs that own Real Property;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(if) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwater or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(p1) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an “Investment Advisor,” as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an “Investment Company,” as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 1 contract
Samples: Advisory Agreement (Inland Western Retail Real Estate Trust Inc)
Duties of Advisor. The Company, on its own behalf, and as general partner of the OP, hereby retains the Advisor shall consult with as the advisor of the Company and shallthe OP to perform the services hereinafter set forth, at and the request of Advisor hereby accepts such appointment, subject to the Board of Directors or the officers of the Company, furnish advice terms and recommendations with respect to all aspects of the business and affairs of the Companyconditions hereinafter set forth. In generalthe performance of this undertaking, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject subject to the supervision of the Board of Directors and consistent with the provisions of the CharterCompany's Charter and the Amended and Restated Agreement of Limited Partnership of the OP (the "Partnership Agreement"), the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to shall: a0 obtain for the Company a continuing and suitable investment program and opportunities to make investments consistent with Advisees, furnish and/or supervise the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions services necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative any ministerial functions necessary in connection with the management of the Company day-to-day operations of the Advisees; b0 seek out, present and recommend to the Advisees, whether through its own efforts or those of third parties retained by it, suitable investment opportunities in real properties, mortgages and mortgage securities, which are consistent with the Advisees' respective investment objectives and policies as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor in connection with policy decisions to be made adopted by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts withnegotiate on behalf of the Advisees with respect to potential investments or the disposition thereof; c0 exercise absolute discretion, subject to the Board of Directors' review, in decisions to originate, acquire, retain or sell real properties, mortgages and supervise services performed by mortgage securities, including negotiations for the prepayment or restructuring of the Advisees' respective mortgage and mortgage securities investments; d0 recommend investment opportunities consistent with the Advisees' respective investment objectives and policies and negotiate on behalf of the Advisees with respect to potential investments or the disposition thereof; e0 when appropriate, cause an Affiliate to serve as the holder or mortgagee of record for properties and mortgage investments, respectively, of the Advisees if such parties Affiliate is qualified to do so and in that capacity to hold escrows on behalf of mortgagors in connection with investments the servicing of mortgages, which have been or it may deposit with various banks; f0 obtain for the Advisees such other services as may be acquired required in acquiring or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the fundsfunds of the Advisees, paying the debts and fulfilling the obligations of the Company Advisees, and handling, prosecuting and settling any claims of the CompanyAdvisees, including foreclosing and otherwise enforcing mortgage mortgages and other liens and security interests securing investments;
(j) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities of the Company;
(k) On behalf of the Company, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(l) At the direction of the Board of Directors, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(n) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(o) Procure on behalf of the Company office space, equipment and personnel as required ; g0 obtain for the performance of the foregoing Advisees such services as advisor;
(p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be required for property management, leasing, mortgage brokerage and servicing, and other activities relating to the investment portfolio of the Advisees; h0 supervise the servicing of the Advisees' loan portfolios; i0 prepare, or cause to be prepared, statements and other relevant information for distribution to stockholders or partners, as the case may be, including annual and quarterly reports and any filings required by regulatory authorities; j0 monitor operations and expenses of the Advisees; k0 from time to time, or as requested by the Board of Directors;
(q) As requested by the Company, make reports to the Company of Advisees as to its performance of the foregoing services and furnish advice and recommendations services; l0 perform any other powers of the Board of Directors or the Company (as general partner of the OP) which (with respect to other aspects of the business of the Company;
(r) Prepare on behalf of are set forth in the CompanyCharter and the Partnership Agreement, or engage independent professionals as applicable, which may be delegated to prepare, all reports and returns required it by the Securities Board of Directors from time to time; and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(s) Undertake and perform m0 do all services or other activities things necessary and proper to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and assure its Affiliates ability to arrange for render the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated contemplated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 1 contract
Duties of Advisor. The Company hereby continues to retain Advisor shall consult with as the advisor of the Company to perform the services hereinafter set forth, and shallAdvisor hereby accepts such appointment, at subject to the request of the Board of Directors or the officers of the Company, furnish advice terms and recommendations with respect to all aspects of the business and affairs of the Companyconditions set forth in this Agreement. In general, the Advisor shall inform the Board its performance of Directors of factors that come to its attention which could influence the policies of the Company. Subject to the supervision of the Board of Directors this undertaking and consistent with the provisions of the Charter, the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies Company's Declaration of the Company Trust and the investment program adopted by the Board of Directors Company's Investment and Conflicts Policy as in effect at the from time and furnish the to time (“Company with advice with respect to the makingInvestment Policy”) (a current copy of which is attached hereto as Exhibit A), acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited toshall:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging obtain for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to furnish and/or supervise the extent necessary, performing all functions services necessary to maintain and administer manage the Company’s assets.
(b) Manage the Company’s day-to-day operations of the Company; and to effect perform all ministerial functions in connection therewith;
(ii) seek out and present to the Company, whether through its own efforts or those of third parties retained by it or with which it contracts, suitable investment opportunities which are consistent with the investment program objectives and policies of the Company Investment Policy as adopted by the Board Trustees from time to time;
(iii) exercise absolute discretion, in decisions to evaluate, originate, acquire, structure, retain, sell, service and negotiate for the waiver, amendment, or modification of Directors terms, prepayment or restructuring of mortgages and perform other investments of the Company and, if applicable, coordinate with government agencies and government sponsored entities in connection therewith;
(iv) recommend investment opportunities consistent with the Company Investment Policy and negotiate on behalf of the Company with respect to potential investments and Company holdings or supervise the performance disposition thereof;
(v) establish and manage the Company’s securitization and capital markets programs;
(vi) cause an Affiliate to serve as the owner of record for, or servicer of, the Company’s investments if such other administrative functions necessary Affiliate is qualified to do so and in that capacity to hold escrows, if applicable, on behalf of mortgagors in connection with the management servicing of mortgages, which it may deposit with various banks including banks with which it may be affiliated;
(vii) obtain for, or provide to, the Company such other services as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s investment advisor required in connection with policy decisions to be made by the Board of Directors andacquiring, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been holding or may be acquired or disposed of by the Company;
(e) [Reserved];
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the fundsfunds of the Company, paying the debts and fulfilling the obligations of the Company Company, and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage mortgages and other liens and security interests securing investments;
(jviii) Assist in negotiations on behalf of obtain for, or provide to, the Company with investment banking firms such services as may be required for property management, mortgage brokerage and servicing, and other institutions or investors for public or private sales of securities of activities relating to the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities investment portfolio of the Company;
(kix) On behalf of the Companyfrom time to time, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(l) At the direction of the Board of Directors, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(n) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(o) Procure on behalf of the Company office space, equipment and personnel as required for the performance of the foregoing services as advisor;
(p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors;
(q) As requested by the CompanyTrustees, make reports to the Company of as to its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(r) Prepare on behalf of the Company, or engage independent professionals to prepare, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(s) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Charterservices; and
(ux) Enter into ancillary agreements with the Sponsor and do all things necessary to assure its Affiliates ability to arrange for render the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated contemplated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Advisory Services Agreement (American Mortgage Acceptance Co)
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated to provide shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IREAI, the Advisor, and the Company with (the "Property Acquisition Service Agreement"), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a "Proposed Property") will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase any Class A income producing multi-family property such Proposed Property which satisfies the Company’s investment objectives is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include: (i) the effect of the acquisition on the diversification of each entity's portfolio; (ii) the amount of funds available for investment;
(iii) cash flow; and (iv) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of Affiliates which present potential conflicts with the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes set forth in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assetsProperty Acquisition Service Agreement.
(b) Manage the Company’s 's day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s 's investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s 's investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved]Cooperate with the Management Agent in connection with property management services and other activities relating to the Company's assets as the Advisor shall deem appropriate in the particular circumstances, subject to the requirement that the Advisor or the Management Agent, as the case may be, qualifies as an "independent contractor" as that phrase is used in connection with applicable laws, rules and regulations affecting REITs that own Real Property;
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwriter or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(pl) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an "Investment Advisor," as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an "Investment Company," as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 1 contract
Samples: Advisory Agreement (Inland Retail Real Estate Trust Inc)
Duties of Advisor. The Company, on its own behalf, and as general partner of the Partnerships, hereby retains the Advisor shall consult with as the advisor of the Company and shallthe Partnerships to perform the services hereinafter set forth, at and the request of Advisor hereby accepts such appointment, subject to the Board of Directors or the officers of the Company, furnish advice terms and recommendations with respect to all aspects of the business and affairs of the Companyconditions hereinafter set forth. In generalthe performance of this undertaking, the Advisor shall inform the Board of Directors of factors that come to its attention which could influence the policies of the Company. Subject subject to the supervision of the Board of Directors and consistent with the provisions of the CharterCompany's Charter and the Partnership Agreements of each Partnership, the Advisor undertakes to use its commercially reasonable efforts to:
(a) Present to the Company a continuing and suitable investment program and opportunities to make investments consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The Advisor is also obligated to provide the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies the Company’s investment objectives placed under contract by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify potential investment opportunities consistent with the Company’s investment objectives and policies including but not limited toshall:
(i) locatingobtain for the Advisees, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating furnish and/or supervise the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions services necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s day-to-day operations to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative any ministerial functions necessary in connection with the management of the Company as may be agreed upon by day-to-day operations of the Advisor and the CompanyAdvisees;
(cii) Serve seek out, present and recommend to the Advisees, whether through its own efforts or those of third parties retained by it, suitable investment opportunities in real properties, mortgages and mortgage securities, which are consistent with the Advisees' respective investment objectives and policies as the Company’s investment advisor in connection with policy decisions to be made adopted by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts withnegotiate on behalf of the Advisees with respect to potential investments or the disposition thereof;
(iii) exercise absolute discretion, subject to the Board of Directors' review, in decisions to originate, acquire, retain or sell real properties, mortgages and supervise services performed by mortgage securities, including negotiations for the prepayment or restructuring of the Advisees' respective mortgage and mortgage securities investments;
(iv) recommend investment opportunities consistent with the Advisees' respective investment objectives and policies and negotiate on behalf of the Advisees with respect to potential investments or the disposition thereof;
(v) when appropriate, cause an Affiliate to serve as the holder or mortgagee of record for properties and mortgage investments, respectively, of the Advisees if such parties Affiliate is qualified to do so and in that capacity to hold escrows on behalf of mortgagors in connection with investments the servicing of mortgages, which have been or it may be acquired or disposed of by the Companydeposit with various banks;
(evi) [Reserved];
(f) Conduct periodic on-site property visits to some obtain for the Advisees such other services as may be required in acquiring or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing and collecting the fundsfunds of the Advisees, paying the debts and fulfilling the obligations of the Company Advisees, and handling, prosecuting and settling any claims of the CompanyAdvisees, including foreclosing and otherwise enforcing mortgage mortgages and other liens and security interests securing investments;
(jvii) Assist in negotiations on behalf obtain for the Advisees such services as may be required for property management, leasing, mortgage brokerage and servicing, and other activities relating to the investment portfolio of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer or underwriter of securities of the CompanyAdvisees;
(kviii) On behalf supervise the servicing of the Company, maintain, with respect to any Real Estate Assets and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insuranceAdvisees' loan portfolios;
(lix) At prepare, or cause to be prepared, statements and other relevant information for distribution to stockholders or partners, as the direction of the Board of Directorscase may be, invest including annual and reinvest quarterly reports and any money of the Companyfilings required by regulatory authorities;
(mx) Provide monitor operations and expenses of the Company with all necessary cash management servicesAdvisees;
(nxi) Supervise the preparation and filing and distribution of returns and reports from time to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(o) Procure on behalf of the Company office spacetime, equipment and personnel or as required for the performance of the foregoing services as advisor;
(p) Advise the Company of the operating results of the Company’s properties, prepare on a timely basis, and review, for such properties, operating budgets, maintenance and improvement schedules, projections of operating results and such other reports as may be requested by the Board of Directors;
(q) As requested by the Company, make reports to the Company of Advisees as to its performance of the foregoing services and furnish advice and recommendations services;
(xii) perform any other powers of the Board of Directors or the Company (as general partner of the Partnerships) which (with respect to other aspects of the business of the Company;
(r) Prepare on behalf of are set forth in the CompanyCharter and the Partnership Agreements, or engage independent professionals as applicable, which may be delegated to prepare, all reports and returns required it by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees Board of such independent professionals;
(s) Undertake and perform all services or other activities necessary and proper Directors from time to carry out the investment objectives of the Company;
(t) Undertake communications with Stockholders in accordance with applicable law and the Chartertime; and
(uxiii) Enter into ancillary agreements with the Sponsor and do all things necessary to assure its Affiliates ability to arrange for render the services to be provided by the Advisor hereunder in accordance with this Agreement; provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated contemplated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoing, the Advisor hereby represents and acknowledges that it will have fiduciary duties to the Company and the Stockholders and that the Company is making a statement to that effect in its registration statement filed with the Securities and Exchange Commission.
Appears in 1 contract
Duties of Advisor. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors that which come to its attention which could would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the CharterArticles of Incorporation, the Advisor undertakes to shall use its commercially reasonable best efforts to:
(a) Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. The In presenting investment opportunities hereunder, the Advisor is also obligated shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated ____________, 1998, among Inland Real Estate Acquisitions, Inc. ("IREAI"), the Advisor, the Company, Inland Real Estate Advisory Services, Inc. ("IREAS") and Inland Real Estate Corporation ("IREC") (the "Property Acquisition Service Agreement"), as the same may be amended from time to provide time. To the extent possible, the resolution of conflicting investment opportunities between the Company, IREC and other investment entities advised or managed by the Advisor and its Affiliates will, as a general rule, be resolved by giving priority to the geographical location of the prospective investment opportunity (the "Proposed Property"). Subject to the exception described below, the Property Acquisition Service Agreement grants the Company with the first opportunity to purchase any Class A income producing multi-family property which satisfies Proposed Property in the Company’s investment objectives 's Primary Geographical Area of Investment which is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Similarly, IREC is granted the first opportunity to purchase any Proposed Property in its primary geographic area of investment (a 400 mile radius of the headquarters in Oak Brook, Illinois, of The Inland Group, Inc.) placed under contract by IREAI, IREAS or its Affiliates, provided it is able to close the purchase of the Proposed Property within 60 days. In the event the Proposed Property is located in both the Company's and IREC's primary geographic area of investment and both have funds available to make the purchase, the Proposed Property will first be offered to IREC. If IREC does not purchase the Proposed Property, it will then be offered to the Company. The Property Acquisition Service Agreement also provides that if (i) the Proposed Property is outside the primary geographical area of investment of both the Company and IREC, (ii) the Company, IREC and any other real estate investment program sponsored by IREIC have funds available to make the purchase and (iii) the Proposed Property meets each of their respective acquisition criteria, then the Proposed Property will (x) first be offered to the IREC, (y) if IREC does not purchase the Proposed Property, it will then be offered to the Company, and (z) if the Company does not purchase the Proposed Property, it will then be offered to such other real estate investment program sponsored by IREIC. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include: (i) the effect of the acquisition on the diversification of each entity's portfolio; (ii) the amount of funds available for investment; (iii) cash flow; and (iv) the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates. If the Board of Directors of the Company does not vote to make such purchase within seven (7) days of being offered such property, the Advisor is free to offer such opportunity to any other Affiliates or non-Affiliates, as it so chooses. The Advisor shall use commercially reasonable efforts to identify which present potential investment opportunities consistent conflicts with the Company’s investment objectives and policies including but not limited to:
(i) locating, analyzing and selecting potential investments in Real Estate Assets;
(ii) structuring and negotiating the terms and conditions of acquisition and disposition transactions;
(iii) arranging for financing and refinancing and making other changes in the asset or capital structure of the Company and disposing of and reinvesting the proceeds from the sale of, or otherwise deal with the investments in, Real Estate Assets; and
(iv) entering into leases and service contracts, on the Company’s behalf, for Real Estate Assets and, to the extent necessary, performing all functions necessary to maintain and administer the Company’s assets.
(b) Manage the Company’s 's day-to-day operations investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;
(c) Serve as the Company’s 's investment advisor advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s 's investments and investment policies;
(d) On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;
(e) [Reserved]Cooperate with the Management Agent in connection with property management services and other activities relating to the Company's assets as the Advisor shall deem appropriate in the particular circumstances, subject to the requirement that the Advisor or the Management Agent, as the case may be, qualifies as an "independent contractor" as that phrase is used in connection with applicable laws, rules and regulations affecting REITs that own Real Property;
(f) Conduct periodic on-site property visits to some or all (as the Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the Properties and to evaluate the performance of the Property Manager;
(g) Review, analyze and comment on the operating budgets, capital budgets and leasing plans prepared and submitted by the Property Manager and aggregate these property budgets into the Company’s overall budget;
(h) Review and analyze on-going financial information pertaining to each Property and the overall portfolio of Properties;
(i) Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;
(jg) Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer dealer, underwriter or underwriter of investment advisor in securities of or for the Company;
(kh) On behalf of the Company, maintainMaintain, with respect to any Real Estate Assets Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;
(li) At the direction Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;
(m) Provide the Company with all necessary cash management services;
(nj) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;
(ok) Procure on behalf of the Company Provide office space, equipment and personnel as required for the performance of the foregoing services as advisorAdvisor;
(pl) Advise the Company of the operating results of the Company’s Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties, properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be requested by the Board of Directorsappropriate;
(qm) As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;
(rn) Prepare on behalf of the Company, or engage independent professionals to prepare, Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies, provided that the Company shall be responsible for the fees of such independent professionals;
(so) Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company;; and
(tp) Undertake communications with Stockholders in accordance with applicable law and the Charter; and
(u) Enter into ancillary agreements with the Sponsor and its Affiliates to arrange for the services to be provided by the Advisor hereunder in accordance with this Agreement; Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described herein and in the Prospectus. Notwithstanding the foregoingIn providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor hereby represents and acknowledges shall not (i) engage in any activity which would require it to be registered as an "Investment Advisor," as that it will have fiduciary duties to term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company and the Stockholders and that to make such investments as would cause the Company to become an "Investment Company," as that term is making a statement to that effect defined in its registration statement filed with the Securities and Exchange CommissionInvestment Company Act of 1940.
Appears in 1 contract
Samples: Advisory Agreement (Inland Retail Real Estate Trust Inc)
