DUTIES OF THE ADVISOR. Subject to Section 2.07, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust potential investment opportunities consistent with the investment objectives and policies of the Trust as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration of Trust and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person: (a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements; (b) structure, qualify and register the initial Offering; (c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering; (d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan; (e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program; (f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies; (g) provide the daily management of the Trust and perform and supervise the various administrative functions reasonably necessary for the management and operations of the Trust; (h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares; (i) investigate, select, and, on behalf of the Trust, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust with any of the foregoing; (j) consult with the officers and the Board and assist the Board in the formulation and implementation of the Trust’s financial policies and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the Trust; (k) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the Trust; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans; (l) provide the Board with periodic reports regarding prospective investments in Assets; (m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction; (n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets; (o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates; (p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the Trust, negotiate on behalf of the Trust with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or obtain loans for the Trust, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust; (q) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in Assets; (r) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust under this Agreement; (s) provide the Trust with, or assist the Trust in arranging for, all necessary cash management services; (t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets; (u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets; (v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations; (w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor; (x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and (y) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 3 contracts
Samples: Advisory Agreement (United Development Funding IV), Advisory Agreement (United Development Funding IV), Advisory Agreement (United Development Funding IV)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to to, consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, Mortgage Loans and other investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties, Mortgage Loans and other investments will be mademade by the Company; (iii) make investments in Assets Properties, Mortgage Loans and other investments on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Mortgage Loans and other investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in Assetsinvestments;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in Assets;
Properties, Mortgage Loans (o) obtain with respect to which the prior approval vote of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor Directors must be obtained), or its Affiliatesother assets;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and Mortgage Loans; and
(n) notify the Board of all proposed material transactions before they are completed.
Appears in 3 contracts
Samples: Advisory Agreement (CNL Hospitality Properties Inc), Advisory Agreement (CNL Hospitality Properties Inc), Advisory Agreement (CNL Hospitality Properties Inc)
DUTIES OF THE ADVISOR. Subject The Advisor shall be deemed to Section 2.07be in a fiduciary relationship to the Company and its Stockholders. The Advisor directly, the Advisor or indirectly through Affiliates, undertakes to use its commercially reasonable best efforts to present to the Trust potential investment opportunities consistent with the investment objectives and policies of the Trust as determined and adopted from time to time by the Board. In performance of this undertakingefforts, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and Bylaws, the Advisor shallto, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or among other duly qualified and licensed Personthings:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s uncertificated Shares, if any, and acting as transfer agent for the Company’s Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making or management of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(i2.02(h) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant relating to which investment in Assets will owned, or to be madeacquired by, the Company or the Partnership; (iiiii) make investments in acquire or dispose of Assets on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iii) structure and negotiate the terms and conditions relating to: (x) the offer and sale of equity or debt securities by the Company (y) the entry into or the restructuring, refinancing of or extensions relating to, Loans; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansMortgages;
(lg) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assetsto acquire or dispose of an Asset;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the Trust, negotiate on behalf of the Trust with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or obtain loans for the Trust, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Assets or contemplated investments of the Trust Company in Assets;
(rj) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its the Advisor’s performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(tl) deliver to to, or maintain on behalf of of, the Trust Company copies of all appraisals obtained in connection with the investments in Assetsacquiring Assets or financing, refinancing, restructuring or extending any Loans;
(um) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring and or disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vn) supervise the preparation and preparation, filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;
(wo) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xp) assist prepare, on behalf of the Trust in preparing Company, all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yq) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 3 contracts
Samples: Advisory Management Agreement (Behringer Harvard Opportunity REIT I, Inc.), Advisory Management Agreement (Behringer Harvard Opportunity REIT I, Inc.), Advisory Management Agreement (Behringer Harvard Opportunity REIT I, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsProperty and Loans; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Assets Properties and Loans will be made, purchased or acquired by the Company; (iii) make investments in Assets Property on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing financing, and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, of or otherwise deal with the investments in, Assetsin Property and Loans; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties and Loans;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperty and/or Loans;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Company Property and/or Loans, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company's business and operations;
(n) provide the Trust withCompany with such accounting data and any other information so requested concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement.;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with investments in Properties and Loans; and
Appears in 3 contracts
Samples: Advisory Agreement (Corporate Property Associates 15 Inc), Advisory Agreement (Corporate Property Associates 15 Inc), Advisory Agreement (Corporate Property Associates 15 Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties and Loans and other Permitted Investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be madeProperties and Loans and other Permitted Investments; (iii) make investments in Assets on behalf of the Trust or the Partnership Properties and Loans and other Permitted Investments in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Loans and other Permitted Investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties, Loans and other Permitted Investments;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties, Loans and other Permitted Investments;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties, Loans and other Permitted Investments; and
(n) notify the Board of all proposed material transactions before they are completed.
Appears in 3 contracts
Samples: Advisory Agreement (CNL Income Properties Inc), Advisory Agreement (CNL Income Properties Inc), Advisory Agreement (CNL Income Properties Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the TrustCompany’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the TrustCompany’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s uncertificated Shares, if any, and acting as transfer agent for the Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansMortgages;
(lg) provide the Board with periodic reports regarding prospective investments in Assets;
(mh) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ni) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assets;
(oj) obtain the prior approval of a majority of the Independent Trustees Directors and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pk) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(ql) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Assets;
(rm) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sn) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(to) deliver to or maintain on behalf of the Trust Company copies of all appraisals obtained in connection with the investments in Assets;
(up) upon request of the TrustCompany, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vq) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;
(wr) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xs) assist prepare on behalf of the Trust in preparing Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yt) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 3 contracts
Samples: Advisory Agreement (Cole Credit Property Trust III, Inc.), Advisory Agreement (Cole Credit Property Trust III, Inc.), Advisory Agreement (Cole Retail Income Trust, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 17 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 17 as determined and adopted from time to time by the Board. The Advisor will follow the Guidelines when allocating Investment opportunities among CPA: 17, other entities managed by the Advisor and its Affiliates, and the Advisor and its Affiliates for their own account. The Guidelines shall not be amended without the prior approval of at least a majority of the Independent Directors. In performance of this undertakingthe foregoing undertakings, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Charter and Bylaws of CPA: 17 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 17’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 17’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 17 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 17;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 17, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 17 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 17 and assist the Board in the formulation and implementation of the TrustCPA: 17’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i) this Agreement and 2.03 hereof, the Guidelines: (i1) locate, analyze and select potential investments in AssetsInvestments; (ii2) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 17; (iii3) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 17; (iv4) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v5) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments Investments and with periodic reports, no less than quarterly, of (1) new Investments made during the prior fiscal quarter, which reports shall include information regarding the type of each Investment made (in Assetsthe categories provided in Section 9); (2) the occurrence of any Triggering Event during the prior fiscal quarter; and (3) the amounts of “dead deal” costs incurred by the Company during the prior fiscal quarter;
(mg) if a assist the Board in its evaluation of potential liquidity transactions for CPA: 17 and take such actions as may be requested by the Board or as may otherwise be necessary or desirable to execute any liquidity transaction requires approval approved by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust CPA: 17 with banks or lenders for loans to be made to the TrustCPA: 17, and negotiate on behalf of the Trust CPA: 17 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 17, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 17;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rk) obtain for, or provide to, CPA: 17 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 17; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 17, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(l) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 17 under this Agreement;
(sm) communicate on behalf of CPA: 17 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 17;
(n) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 17’s business and operations;
(o) provide CPA: 17 with such accounting data and any other information requested by CPA: 17 concerning the Trust withinvestment activities of CPA: 17 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(p) maintain the Trust books and records of CPA: 17;
(q) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(r) provide CPA: 17 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ys) do all things necessary to assure its ability to render the services described in this Agreement;
(t) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 17 as the Advisor shall deem advisable under the particular circumstances;
(u) arrange to obtain on behalf of CPA: 17 as requested by the Board, and deliver to or maintain on behalf of CPA: 17 copies of, all appraisals obtained in connection with investments in Properties and Loans;
(v) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter; and
(w) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in the Company’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by the Company during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether, after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by the Company in respect of such Investment, and if the Independent Directors make that request, the Advisor shall refund such amount to the Company within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by the Company if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that the Company should not bear such costs.
Appears in 3 contracts
Samples: Advisory Agreement (W. P. Carey Inc.), Advisory Agreement (Corporate Property Associates 17 - Global INC), Advisory Agreement (W. P. Carey Inc.)
DUTIES OF THE ADVISOR. Subject The Advisor shall be deemed to Section 2.07, be in a fiduciary relationship to the Company and its Stockholders. The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the TrustCompany’s most recent Prospectus for Shares, Declaration the Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s uncertificated Shares, if any, and acting as transfer agent for the Company’s Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(i2.02(h) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansMortgages;
(lg) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Assets;
(rk) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(tm) deliver to or maintain on behalf of the Trust Company copies of all appraisals obtained in connection with the investments in Assets;
(un) upon request of the TrustCompany, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vo) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;
(wp) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xq) assist prepare on behalf of the Trust in preparing Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 3 contracts
Samples: Advisory Management Agreement (Behringer Harvard Opportunity REIT I, Inc.), Advisory Agreement (Behringer Harvard Opportunity REIT I, Inc.), Advisory Agreement (Behringer Harvard Opportunity REIT I, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 17 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 17 as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CPA: 17 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 17’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 17’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 17 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 17;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 17, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 17 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 17 and assist the Board in the formulation and implementation of the TrustCPA: 17’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsInvestments; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 17; (iii) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 17; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments Investments [and with periodic reports, no less than quarterly, of new Investments made during the prior fiscal quarter, which reports shall include information regarding the type of each Investment made (in Assetsthe categories provided in Section 9)];
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust CPA: 17 with banks or lenders for loans to be made to the TrustCPA: 17, and negotiate on behalf of the Trust CPA: 17 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 17, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 17;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rj) obtain for, or provide to, CPA: 17 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 17; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 17, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 17 under this Agreement;
(sl) communicate on behalf of CPA: 17 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 17;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 17’s business and operations;
(n) provide CPA: 17 with such accounting data and any other information requested by CPA: 17 concerning the Trust withinvestment activities of CPA: 17 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of CPA: 17;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(q) provide CPA: 17 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 17 as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of CPA: 17 as requested by the Board, and deliver to or maintain on behalf of CPA: 17 copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
Appears in 2 contracts
Samples: Advisory Agreement (Corporate Property Associates 17 - Global INC), Advisory Agreement (Corporate Property Associates 17 - Global INC)
DUTIES OF THE ADVISOR. Subject to Section 2.07During the term of this Agreement, the Advisor undertakes to will be responsible for performing the day-to-day business affairs of the Company. The Advisor will use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company, as determined and adopted from time to time by the BoardDirectors. In performance As part of performing its obligations hereunder, subject to certain restrictions described in this undertakingAgreement (including those set forth in Sections 4 and 7 below), and subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration the Articles of Trust Incorporation and Bylawsthe Bylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personwill:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany, including cash management services;
(hc) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(i) investigatelocate, select, and, analyze and select potential investments in Properties and Mortgage Loans; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investments in Properties and Mortgage Loans will be made by the Company; (iii) make investments in Properties and Mortgage Loans on behalf of the TrustCompany in compliance with the investment objectives and policies of the Company; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of investments in Properties and Mortgage Loans; (v) on behalf of the Company, sell, dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Properties and Mortgage Loans, in compliance with the investment objectives and policies of the Company; and (vi) enter into leases and service contracts for Company Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Company Assets;
(d) negotiate on behalf of the Company with banks or lenders for loans to be made to the Company, and negotiate on behalf of the Company with investment banking firms and broker-dealers or negotiate private sales of Shares and other securities, but in no event in such a way so that the Advisor will be acting as a broker-dealer or underwriter; and provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing will be the responsibility of the Company;
(e) on behalf of the Company, investigate, select and engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jf) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(k) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the Trust; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans;
(l) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the Trust, negotiate on behalf of the Trust with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or obtain loans for the Trust, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust;
(qg) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rh) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(s) provide the Trust with, or assist the Trust in arranging for, all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yi) do all things necessary to assure its ability to render the services described in this Agreement;
(j) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and Mortgage Loans; and
(k) notify the Board of Directors of all proposed material transactions before they are completed.
Appears in 2 contracts
Samples: Advisory Agreement (Wellbrook Properties, Inc.), Advisory Agreement (Wellbrook Properties, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts --------------------- to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for SharesProspectus, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the Trust’s Company's uncertificated Shares and acting as transfer agent for the Company's uncertificated Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not not' limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board of the Company and assist the Board in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lg) provide the Board with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-broker- dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rk) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ym) do all things necessary to assure its ability to render the services described in this Agreement;
(n) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(o) notify the Board of all proposed material transactions before they are completed.
Appears in 2 contracts
Samples: Advisory Agreement (Wells Real Estate Investment Trust Inc), Advisory Agreement (Wells Real Estate Investment Trust Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for Sharesregistration statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties and Loans and other Permitted Investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be madeProperties and Loans and other Permitted Investments; (iii) make investments in Assets on behalf of the Trust or the Partnership Properties and Loans and other Permitted Investments in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Loans and other Permitted Investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties, Loans and other Permitted Investments;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties, Loans and other Permitted Investments;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties, Loans and other Permitted Investments; and
(n) notify the Board of all proposed material transactions before they are completed.
Appears in 2 contracts
Samples: Advisory Agreement (CNL Income Properties Inc), Advisory Agreement (CNL Income Properties Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of the Company and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with Directors of the officers and the Board Company and assist the Board in the formulation and implementation of the TrustCompany’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request with respect or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the Trust;Board.
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in Investment Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Investment Assets will be made, purchased or acquired by the Company; (iii) make investments in Investment Assets on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Investment Assets; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in Investment Assets;; the occurrence of any Triggering Event during the prior fiscal quarter; and the amounts of “dead deal” costs incurred by the Company during the prior fiscal quarter.
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Investment Assets;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Investment Assets, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company’s business and operations;
(n) provide the Trust withCompany with such accounting data and any other information requested by the Company concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of the Company as requested by the Board, and deliver to or maintain on behalf of the Company copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
(v) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in the Company’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment Asset acquired during the past year; and (c) the “dead deal” costs incurred by the Company during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether. after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by the Company in respect of such Investment Asset, and if the Independent Directors make that request, the Advisor shall refund such amount to the Company within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by the Company if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that the Company should not bear such costs.
Appears in 2 contracts
Samples: Advisory Agreement (Corporate Property Associates 15 Inc), Advisory Agreement (Carey W P & Co LLC)
DUTIES OF THE ADVISOR. Subject to Section 2.0714, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CWI 2 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CWI 2 as determined and adopted from time to time by the Board. The Advisor will follow the Guidelines when allocating Investment opportunities among CWI 2, other entities managed by the Advisor and its Affiliates, and the Advisor and its Affiliates for their own account. The Guidelines shall not be amended without the prior approval of at least a majority of the Independent Directors. In performance of this undertakingthe foregoing undertakings, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CWI 2 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of or the Advisor or other duly qualified and licensed PersonSubadvisor:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s CWI 2's investment and financial advisor and provide research and economic and statistical data in connection with the Assets CWI 2's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CWI 2 and perform and supervise the various administrative functions reasonably necessary for the management of CWI 2, the Operating Partnership and operations of the TrustInvestments;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCWI 2, engage engage, oversee and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; franchisors, independent property management companies, transfer agents operators and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CWI 2 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CWI 2 and assist the Board in the formulation and implementation of the Trust’s financial policies andCWI 2's policies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(h) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsInvestments and deliver to the Investment Committee, as applicable, such information as it may request or as otherwise may be necessary to enable the Investment Committee to evaluate potential Investments; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CWI 2; (iii) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCWI 2; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such; (vi) oversee such Assets, including non-affiliated property managers and other non-affiliated Persons who perform services for CWI 2; and (vii) undertake accounting and other record-keeping functions at the servicing of Secured LoansInvestment level;
(lf) provide the Board with periodic reports regarding prospective investments in AssetsInvestments and with periodic reports, no less than quarterly, of new Investments made during the prior fiscal quarter;
(mg) if a assist the Board in its evaluation of potential liquidity transactions for CWI 2 and take such actions as may be requested by the Board or as may otherwise be necessary or desirable to execute any liquidity transaction requires approval approved by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperties which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust CWI 2 with banks or lenders for loans to be made to the TrustCWI 2, and negotiate on behalf of the Trust CWI 2 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCWI 2, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCWI 2;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rk) obtain for, or provide to, CWI 2 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CWI 2; and (iv) the handling, prosecuting and settling of any claims of or against CWI 2, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(l) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CWI 2 under this Agreement;
(sm) communicate on behalf of CWI 2 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CWI 2;
(n) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CWI 2's business and operations;
(o) provide CWI 2 with such accounting data and any other information requested by CWI 2 concerning the Trust withinvestment activities of CWI 2 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(p) maintain the Trust books and records of CWI 2;
(q) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(r) provide CWI 2 with all necessary cash management services;
(ts) deliver provide asset management services including, without limitation, oversight and strategic guidance to or maintain on behalf independent property operators that handle day-to-day operations of the Trust copies of all appraisals obtained in connection with the investments in AssetsCWI 2's Properties;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yt) do all things necessary to assure its ability to render the services described in this Agreement;
(u) perform such other services as may be required from time to time for management and other activities relating to the assets of CWI 2 as the Advisor shall deem advisable under the particular circumstances;
(v) arrange to obtain on behalf of CWI 2 as requested by the Board, and deliver to or maintain on behalf of CWI 2 copies of, all appraisals obtained in connection with Investments;
(w) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter; and
(x) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor's performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor's report shall address, among other things, (a) those matters identified in CWI 2's organizational documents as matters which the Independent Directors must review each year with respect to the Advisor's performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the "dead deal" costs incurred by CWI 2 during the past year. In addition, the Independent Directors may request that the Advisor refund certain of the "dead deal" costs incurred by CWI 2 if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that CWI 2 should not bear such costs.
Appears in 2 contracts
Samples: Advisory Agreement (Carey Watermark Investors 2 Inc), Advisory Agreement (W. P. Carey Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not not' limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-broker- dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(n) notify the Board of all proposed material transactions before they are completed.
Appears in 2 contracts
Samples: Advisory Agreement (Wells Real Estate Investment Trust Inc), Advisory Agreement (Wells Real Eastate Investment Trust Inc)
DUTIES OF THE ADVISOR. (a) The Advisor shall be deemed to be in a fiduciary relationship to the Company and its Stockholders. Subject to Section 2.072.08, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertakingperforming its duties, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person:
(ai) manage provide the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection Company with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(gii) provide manage the daily management of the Trust Company’s day-to-day operations and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hiii) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s Shares;
(iiv) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such the duly qualified and licensed Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to duly qualified and licensed consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including duly qualified and licensed Affiliates of the Advisor, and duly qualified and licensed Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jv) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kvi) subject to the provisions of Sections 2.02(i2.02(a)(viii) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust Company or the Operating Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets with duly qualified and licensed Persons and, to the extent necessary, perform all other operational functions for the maintenance and administration of such the Assets, including the servicing of Secured LoansMortgages;
(lvii) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nviii) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pix) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qx) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Assets;
(rxi) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sxii) provide the Trust with, or assist the Trust Company in arranging for, for all necessary cash management services;
(txiii) deliver to or maintain on behalf of the Trust Company copies of all appraisals obtained in connection with the investments in Assets;
(uxiv) upon request of the TrustCompany, act, or obtain the services of duly qualified and licensed others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and retaining counsel or other advisors to assist in handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vxv) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust in connection with investor relationsCompany;
(wxvi) provide office space, equipment and duly qualified and licensed personnel as required for the performance of the foregoing services as Advisor;
(xxvii) assist the Trust Company in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yxviii) do all things necessary to assure its ability to render the services described in this Agreement.
(b) Following the hiring of the Initial Transferred Executives by the Company, as contemplated by and permitted under Section 7.1 of the Master Modification Agreement, (i) the Company shall cause such Initial Transferred Executives and any other employees of the Company and its Affiliates to cooperate with and assist the Advisor as is reasonably necessary or appropriate in order to enable the Advisor to continue to perform the duties described in Section 2.02(a), and (ii) the Advisor shall cause its employees to cooperate with and assist the Initial Transferred Executives as is reasonably necessary or appropriate, consistent with past practice. The Company acknowledges and agrees that certain of the duties of Advisor provided hereunder were previously performed (or performed in part) by the Initial Transferred Executives, who are no longer employed by the Advisor or its Affiliates as a result of the transactions to be consummated upon the execution and delivery of the Master Modification Agreement but will perform such services for the Company as employees of the Company. As a result, the Company acknowledges and agrees that the duties of the Advisor (from and after the date hereof) shall be modified as is reasonably necessary to reflect the fact that the Initial Transferred Executives are no longer employed by Advisor, irrespective of whether such Initial Transferred Executive remains employed by the Company. If any of the Initial Transferred Executives cease their employment with the Company during the term of this Agreement, the Company shall use commercially reasonable efforts to hire a replacement employee as promptly as is reasonably practicable to perform the duties and functions of such Initial Transferred Executive. If the Company has not hired such a replacement employee and the Advisor reasonably determines that a replacement is necessary to perform the duties of such Initial Transferred Executive prior to the Company hiring a replacement employee, the Advisor may, at any time after the respective Initial Transferred Executive ceases to be employed by the Company, in its discretion, hire or assign an employee to perform the duties and functions of such Initial Transferred Executive under this Agreement on a temporary basis; provided, that such employee is reasonably acceptable to the Company. The Company shall be responsible for the cost of any such temporary employee’s compensation and benefits; provided, however, that if such temporary employee does not allocate all of his or her business time to providing services to or for the Company, then the Company shall only be responsible for a percentage of such costs equal to the percentage of such temporary employee’s business time spent on providing services to or for the Company. If the Company has not hired a replacement employee (on a temporary or permanent basis) within 120 days of such Initial Transferred Executive ceasing employment with the Company, the Advisor may, in its discretion, hire a permanent employee (or make a temporary employee permanent) upon notice to the Company, in which case (x) such permanent employee shall be deemed to be a “Specified Employee” under the Master Modification Agreement and (y) the Adjustment Amount specified in Section 3.01(a) shall be reduced by an amount equal to the total annual compensation and benefits of such permanent employee; provided that the Advisor may not hire such a permanent employee (or make such a temporary employee permanent) after April 1, 2014 without the prior consent of the Company.
Appears in 2 contracts
Samples: Master Modification Agreement (Behringer Harvard Multifamily Reit I Inc), Advisory Management Agreement (Behringer Harvard Multifamily Reit I Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesProspectus, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the Trust;
(k) Company; subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties and other Permitted Investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be madeProperties and other Permitted Investments; (iii) make investments in Assets on behalf of the Trust or the Partnership Properties and other Permitted Investments in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties and other Permitted Investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(le) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties and other Permitted Investments;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nf) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties and other Permitted Investments;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pg) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qh) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(ri) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sj) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yk) do all things necessary to assure its ability to render the services described in this Agreement;
(l) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and other Permitted Investments; and
(m) notify the Board of all proposed material transactions before they are completed.
Appears in 2 contracts
Samples: Advisory Agreement (Rich Uncles REIT, Inc.), Advisory Agreement (Rich Uncles REIT, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of the Company and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with Directors of the officers and the Board Company and assist the Board in the formulation and implementation of the Trust’s financial policies andCompany's policies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in Investment Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Investment Assets will be made, purchased or acquired by the Company; (iii) make investments in Investment Assets on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Investment Assets; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in Investment Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Investment Assets;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Investment Assets, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company's business and operations;
(n) provide the Trust withCompany with such accounting data and any other information requested by the Company concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of the Company as requested by the Board, and deliver to or maintain on behalf of the Company copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
Appears in 2 contracts
Samples: Advisory Agreement (Carey W P & Co LLC), Advisory Agreement (Corporate Property Associates 16 Global Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of the Company and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with Directors of the officers and the Board Company and assist the Board in the formulation and implementation of the Trust’s Company's financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in Investment Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Investment Assets will be made, purchased or acquired by the Company; (iii) make investments in Investment Assets on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Investment Assets; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in Investment Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Investment Assets;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Investment Assets, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company's business and operations;
(n) provide the Trust withCompany with such accounting data and any other information requested by the Company concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of the Company as requested by the Board, and deliver to or maintain on behalf of the Company copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
Appears in 2 contracts
Samples: Advisory Agreement (Corporate Property Associates 15 Inc), Advisory Agreement (Carey W P & Co LLC)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 16 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 16 as determined and adopted from time to time by the Board. The Advisor will follow the Guidelines when allocating Investment opportunities among CPA: 16, other entities managed by the Advisor and its Affiliates, and the Advisor and its Affiliates for their own account. The Guidelines shall not be amended without the prior approval of at least a majority of the Independent Directors. In performance of this undertakingthe foregoing undertakings, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Charter and Bylaws of CPA: 16 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 16’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 16’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 16 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 16;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 16, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 16 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 16 and assist the Board in the formulation and implementation of the TrustCPA: 16’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i) this Agreement and 2.03 hereof, the Guidelines: (i1) locate, analyze and select potential investments in AssetsInvestments; (ii2) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 16; (iii3) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 16; (iv4) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v5) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in AssetsInvestments and with periodic reports, no less than quarterly, of (1) the occurrence of any Triggering Event during the prior fiscal quarter; and (2) the amounts of “dead deal” costs incurred by CPA: 16 during the prior fiscal quarter;
(mg) if a assist the Board in its evaluation of potential liquidity transactions for CPA: 16 and take such actions as may be requested by the Board or as may otherwise be necessary or desirable to execute any liquidity transaction requires approval approved by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust CPA: 16 with banks or lenders for loans to be made to the TrustCPA: 16, and negotiate on behalf of the Trust CPA: 16 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 16, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 16;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rk) obtain for, or provide to, CPA: 16 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 16; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 16, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(l) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 16 under this Agreement;
(sm) communicate on behalf of CPA: 16 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 16;
(n) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 16’s business and operations;
(o) provide CPA: 16 with such accounting data and any other information requested by CPA: 16 concerning the Trust withinvestment activities of CPA: 16 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(p) maintain the Trust books and records of CPA: 16;
(q) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(r) provide CPA: 16 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ys) do all things necessary to assure its ability to render the services described in this Agreement;
(t) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 16 as the Advisor shall deem advisable under the particular circumstances;
(u) arrange to obtain on behalf of CPA: 16 as requested by the Board, and deliver to or maintain on behalf of CPA: 16 copies of, all appraisals obtained in connection with investments in Properties and Loans;
(v) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter;
(w) monitor the performance by the Manager of its duties under the Management Agreement; and
(x) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in CPA: 16’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by CPA: 16 during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether, after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by CPA: 16 in respect of such Investment, and if the Independent Directors make that request, the Advisor shall refund such amount to CPA: 16 within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by CPA: 16 if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that CPA: 16 should not bear such costs.
Appears in 2 contracts
Samples: Advisory Agreement (Corporate Property Associates 16 Global Inc), Advisory Agreement (W. P. Carey Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of the Company and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with Directors of the officers and the Board Company and assist the Board in the formulation and implementation of the TrustCompany’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in Investment Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Investment Assets will be made, purchased or acquired by the Company; (iii) make investments in Investment Assets on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Investment Assets; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in Investment Assets; the occurrence of any Triggering Event during the prior fiscal quarter; and the amounts of “dead deal” costs incurred by the Company during the prior fiscal quarter;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Investment Assets;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Investment Assets, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company’s business and operations;
(n) provide the Trust withCompany with such accounting data and any other information requested by the Company concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of the Company as requested by the Board, and deliver to or maintain on behalf of the Company copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
(v) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in the Company’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by the Company during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether, after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by the Company in respect of such Investment Asset, and if the Independent Directors make that request, the Advisor shall refund such amount to the Company within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by the Company if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that the Company should not bear such costs.
Appears in 2 contracts
Samples: Advisory Agreement (Carey W P & Co LLC), Advisory Agreement (Corporate Property Associates 16 Global Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties and Mortgage Loans and potential lessees of Secured Equipment Leases, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties and Mortgage Loans will be mademade and Secured Equipment Leases will be offered by the Company; (iii) make investments in Assets Properties and Mortgage Loans and enter into Secured Equipment Leases on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Mortgage Loans and Secured Equipment Leases; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties and Mortgage Loans and prospective lessees or borrowers of Secured Equipment Leases;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in Assets;
Properties; and Mortgage Loans and in connection with the offering of Secured Equipment Leases (o) obtain the prior approval vote of a majority of the all Independent Trustees Directors must also be obtained with respect to Mortgage Loans and a majority of the Board not otherwise interested in any transaction with the Advisor or its AffiliatesSecured Equipment Leases);
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and Mortgage Loans;
(n) notify the Board of all proposed material transactions before they are completed; and
(o) administer the Secured Equipment Lease program on behalf of the Company.
Appears in 2 contracts
Samples: Advisory Agreement (CNL Retirement Properties Inc), Advisory Agreement (CNL Retirement Properties Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, Mortgage Loans, potential lessees of Secured Equipment Leases and other investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties, Mortgage Loans and other investments will be mademade and Secured Equipment Leases will be offered by the Company; (iii) make investments in Assets Properties, Mortgage Loans and other investments and enter into Secured Equipment Leases on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Mortgage Loans, Secured Equipment Leases and other investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in Assetsand prospective lessees or borrowers of Secured Equipment Leases;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in Assets;
Properties, Mortgage Loans and other investments and in connection with the offering of Secured Equipment Leases (o) obtain the prior approval vote of a majority of the all Independent Trustees Directors must also be obtained with respect to Mortgage Loans and a majority of the Board not otherwise interested in any transaction with the Advisor or its AffiliatesSecured Equipment Leases);
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and Mortgage Loans;
(n) notify the Board of all proposed material transactions before they are completed; and
(o) administer the Secured Equipment Lease program on behalf of the Company.
Appears in 2 contracts
Samples: Advisory Agreement (CNL Retirement Properties Inc), Advisory Agreement (CNL Retirement Properties Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 17 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 17 as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CPA: 17 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 17’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 17’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 17 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 17;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 17, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 17 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 17 and assist the Board in the formulation and implementation of the TrustCPA: 17’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i1) locate, analyze and select potential investments in AssetsInvestments; (ii2) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 17; (iii3) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 17; (iv4) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v5) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments Investments and with periodic reports, no less than quarterly, of (1) new Investments made during the prior fiscal quarter, which reports shall include information regarding the type of each Investment made (in Assetsthe categories provided in Section 9); (2) the occurrence of any Triggering Event during the prior fiscal quarter; and (3) the amounts of “dead deal” costs incurred by the Company during the prior fiscal quarter;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust CPA: 17 with banks or lenders for loans to be made to the TrustCPA: 17, and negotiate on behalf of the Trust CPA: 17 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 17, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 17;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rj) obtain for, or provide to, CPA: 17 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 17; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 17, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 17 under this Agreement;
(sl) communicate on behalf of CPA: 17 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 17;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 17’s business and operations;
(n) provide CPA: 17 with such accounting data and any other information requested by CPA: 17 concerning the Trust withinvestment activities of CPA: 17 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of CPA: 17;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(q) provide CPA: 17 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 17 as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of CPA: 17 as requested by the Board, and deliver to or maintain on behalf of CPA: 17 copies of, all appraisals obtained in connection with investments in Properties and Loans;
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter; and
(v) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in the Company’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by the Company during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether, after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by the Company in respect of such Investment, and if the Independent Directors make that request, the Advisor shall refund such amount to the Company within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by the Company if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that the Company should not bear such costs.
Appears in 2 contracts
Samples: Advisory Agreement (Corporate Property Associates 17 - Global INC), Advisory Agreement (Carey W P & Co LLC)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, Mortgage Loans and Loans and potential lessees of Secured Equipment Leases, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties, Mortgage Loans and Loans will be mademade and Secured Equipment Leases will be offered by the Company; (iii) make investments in Assets Properties, Mortgage Loans and Loans and enter into Secured Equipment Leases on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty, Mortgage Loans, Loans and Secured Equipment Leases; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties, Mortgage Loans and Loans and prospective lessees of Secured Equipment Leases;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties, Loans and in connection with the offering of Secured Equipment Leases;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, including the Line of Credit, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties, Mortgage Loans, Loans and/or Secured Equipment Leases;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties, Mortgage Loans and Loans; and
(n) notify the Board of all proposed material transactions before they are completed.
(o) administer the Secured Equipment Lease program on behalf of the Company.
Appears in 2 contracts
Samples: Advisory Agreement (CNL American Properties Fund Inc), Advisory Agreement (CNL American Properties Fund Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.0714, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CWI 2 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CWI 2 as determined and adopted from time to time by the Board. The Advisor will follow the Guidelines when allocating Investment opportunities among CWI 2, other entities managed by the Advisor and its Affiliates, and the Advisor and its Affiliates for their own account. The Guidelines shall not be amended without the prior approval of at least a majority of the Independent Directors. In performance of this undertakingthe foregoing undertakings, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CWI 2 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of or the Advisor or other duly qualified and licensed PersonSubadvisor:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCWI 2’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CWI 2’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CWI 2 and perform and supervise the various administrative functions reasonably necessary for the management of CWI 2, the Operating Partnership and operations of the TrustInvestments;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCWI 2, engage engage, oversee and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; franchisors, independent property management companies, transfer agents operators and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CWI 2 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CWI 2 and assist the Board in the formulation and implementation of the TrustCWI 2’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(h) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsInvestments and deliver to the Investment Committee, as applicable, such information as it may request or as otherwise may be necessary to enable the Investment Committee to evaluate potential Investments; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CWI 2; (iii) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCWI 2; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such; (vi) oversee such Assets, including non-affiliated property managers and other non-affiliated Persons who perform services for CWI 2; and (vii) undertake accounting and other record-keeping functions at the servicing of Secured LoansInvestment level;
(lf) provide the Board with periodic reports regarding prospective investments in AssetsInvestments and with periodic reports, no less than quarterly, of new Investments made during the prior fiscal quarter;
(mg) if a assist the Board in its evaluation of potential liquidity transactions for CWI 2 and take such actions as may be requested by the Board or as may otherwise be necessary or desirable to execute any liquidity transaction requires approval approved by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperties which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust CWI 2 with banks or lenders for loans to be made to the TrustCWI 2, and negotiate on behalf of the Trust CWI 2 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCWI 2, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCWI 2;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rk) obtain for, or provide to, CWI 2 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CWI 2; and (iv) the handling, prosecuting and settling of any claims of or against CWI 2, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(l) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CWI 2 under this Agreement;
(sm) communicate on behalf of CWI 2 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CWI 2;
(n) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CWI 2’s business and operations;
(o) provide CWI 2 with such accounting data and any other information requested by CWI 2 concerning the Trust withinvestment activities of CWI 2 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(p) maintain the Trust books and records of CWI 2;
(q) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(r) provide CWI 2 with all necessary cash management services;
(ts) deliver provide asset management services including, without limitation, oversight and strategic guidance to or maintain on behalf independent property operators that handle day-to-day operations of the Trust copies of all appraisals obtained in connection with the investments in AssetsCWI 2’s Properties;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yt) do all things necessary to assure its ability to render the services described in this Agreement;
(u) perform such other services as may be required from time to time for management and other activities relating to the assets of CWI 2 as the Advisor shall deem advisable under the particular circumstances;
(v) arrange to obtain on behalf of CWI 2 as requested by the Board, and deliver to or maintain on behalf of CWI 2 copies of, all appraisals obtained in connection with Investments;
(w) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter; and
(x) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in CWI 2’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by CWI 2 during the past year. In addition, the Independent Directors may request that the Advisor refund certain of the “dead deal” costs incurred by CWI 2 if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that CWI 2 should not bear such costs.
Appears in 1 contract
Samples: Advisory Agreement (Carey Watermark Investors 2 Inc)
DUTIES OF THE ADVISOR. Subject The Advisor shall be deemed to Section 2.07, be in a fiduciary relationship to the Company and its Stockholders. The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the TrustCompany’s most recent Prospectus for Shares, Declaration the Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s Shares, if any, and acting as transfer agent for the Company’s Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(i2.02(h) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansMortgages;
(lg) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Assets;
(rk) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(tm) deliver to or maintain on behalf of the Trust Company copies of all appraisals obtained in connection with the investments in Assets;
(un) upon request of the TrustCompany, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vo) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;
(wp) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xq) assist prepare on behalf of the Trust in preparing Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 1 contract
Samples: Advisory Management Agreement (Behringer Harvard Opportunity REIT II, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts --------------------- to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for SharesProspectus, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the Trust’s Company's uncertificated Shares and acting as transfer agent for the Company's uncertificated Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not not' limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board of the Company and assist the Board in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lg) provide the Board with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rk) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ym) do all things necessary to assure its ability to render the services described in this Agreement;
(n) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(o) notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
Samples: Advisory Agreement (Wells Real Estate Investment Trust Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardBoard of Directors. In performance of this undertaking, subject to the supervision of the Board of Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesProspectus, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the Trust’s Company's uncertificated Shares, if any, and acting as transfer agent for the Company's uncertificated Shares, if any;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board of Directors and assist the Board of Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board of Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(iparagraphs (g) and 2.03 (h) hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lg) provide the Board of Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board of Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rk) from time to time, or at any time reasonably requested by the BoardBoard of Directors, make reports to the Board of Directors of its performance of services to the Trust Company under this Agreement;
(sl) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ym) do all things necessary to assure its ability to render the services described in this Agreement;
(n) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(o) notify the Board of Directors of all proposed material transactions before they are completed.
Appears in 1 contract
Samples: Advisory Agreement (Behringer Harvard Real Estate Investment Trust I Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company and the Operating Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company and the Operating Partnership Agreement, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage serve as the formation of the Trust Company’s and the Operating Partnership, including the preparation ’s investment and filing of all necessary documentation and ancillary agreementsfinancial advisor;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(g) provide the daily management of for the Trust Company and the Operating Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany and the Operating Partnership;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany and the Operating Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property real estate management companies, transfer agents real estate operating companies, securities investment advisors, mortgagors, and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including including, but not limited to to, entering into contracts in the name of the Trust Company and the Operating Partnership with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany or the Operating Partnership;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 Section 4 hereof, (i) participate in formulating an investment strategy and asset allocation framework, (ii) locate, analyze and select potential investments in Assets; Investments, (iiiii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets acquisitions and dispositions of Investments will be made; (iiiiv) research, identify, review and recommend acquisitions and dispositions of Investments to the Board and make investments in Assets on behalf of the Trust or Company and the Operating Partnership in compliance with the investment objectives and policies of the TrustCompany; (ivv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments inwith, AssetsInvestments; and (vvi) enter into leases of Property and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives; (vii) select Joint Venture partners, including structure corresponding agreements and oversee and monitor these relationships; (viii) oversee Affiliated and non-Affiliated property managers who perform services for the servicing Company or the Operating Partnership; (ix) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of Secured Loans;the services required to be performed under this Agreement; (x) manage accounting and other record-keeping functions for the Company and the Operating Partnership; and (xi) recommend various liquidity events to the Board of Directors when appropriate.
(lf) upon request, provide the Board Directors with periodic reports regarding prospective investments in Assetsinvestments;
(mg) if a transaction requires approval make investments in, and dispositions of, Investments within the discretionary limits and authority as granted by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company and the Operating Partnership with banks or lenders for loans Loans to be made to the TrustCompany and the Operating Partnership, and negotiate on behalf of the Trust Company and the Operating Partnership with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust or obtain loans Loans for the Trust, as Company and when appropriatethe Operating Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany or the Operating Partnership;
(qi) obtain reports (which may may, but are not required to, be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsCompany and the Operating Partnership;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company and the Operating Partnership under this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its affiliates;
(sk) provide the Trust with, or assist Company and the Trust in arranging for, Operating Partnership with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to, or maintain on behalf of, the Company copies of all appraisals obtained in connection with the investments in any Real Estate Assets as may be required to be obtained by the Board;
(n) notify the Board of Directors of all proposed material transactions before they are completed; and
(o) effect any private placement of OP Units, tenancy-in-common or other interests in Investments as may be approved by the Board. Notwithstanding the foregoing, the Advisor may delegate any of the foregoing duties to any Person so long as the Advisor or any Affiliate remains responsible for the performance of the duties set forth in this Section 3.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed PersonPermitted Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(n) notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, Mortgage Loans, potential lessees of Secured Equipment Leases [and other investments], (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties, Mortgage Loans and [other investments] will be mademade and Secured Equipment Leases will be offered by the Company; (iii) make investments in Assets Properties, Mortgage Loans [and other investments] and enter into Secured Equipment Leases on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties, Mortgage Loans, Secured Equipment Leases [and other investments]; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in Assetsand prospective lessees or borrowers of Secured Equipment Leases;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in Assets;
Properties, Mortgage Loans and other investments and in connection with the offering of Secured Equipment Leases (o) obtain the prior approval vote of a majority of the all Independent Trustees Directors must also be obtained with respect to Mortgage Loans and a majority of the Board not otherwise interested in any transaction with the Advisor or its AffiliatesSecured Equipment Leases);
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and Mortgage Loans;
(n) notify the Board of all proposed material transactions before they are completed; and
(o) administer the Secured Equipment Lease program on behalf of the Company.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the Advisor undertakes to use its commercially reasonable best efforts to (1) present to the Trust and the Partnership potential investment opportunities consistent with the investment objectives and policies of the Trust as determined and adopted from time to time by the BoardBoard and (2) manage, administer, promote, maintain and improve the Assets on an overall portfolio basis in a diligent manner. The services of the Advisor are to be of scope and quality not less than those generally performed by professional asset managers of other similar asset portfolios. The Advisor shall make available the full benefit of the judgment, experience and advice of the members of the Advisor’s organization and staff with respect to the duties it will perform under this Agreement. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration of Trust and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(eb) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(fc) serve as the Trust’s and the Partnership’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(gd) perform due diligence on prospective investments and create due diligence reports summarizing the results of such work;
(e) provide the daily management of the Trust and the Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustTrust and the Partnership;
(hf) maintain and preserve the books and records of the TrustTrust and the Partnership, including (1) share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares, (2) acting as transfer agent for the Trust’s Shares or selecting, engaging and overseeing the performance by a third party transfer agent, and (3) maintaining the accounting and other record-keeping functions at the Asset and Trust levels in accordance with generally accepted accounting principles, which shall be supported by sufficient documentation to ascertain that such records are properly and accurately recorded. Such books and records shall be the property of the Trust and shall be available for inspection by the Board and by counsel, auditors and other authorized agents of the Trust at any time or from time to time during normal business hours. Such books and records shall include all information necessary to calculate and audit the fees or reimbursements paid under this Agreement. The Advisor shall utilize procedures to attempt to ensure such control over accounting and financial transactions as is reasonably required to protect the Trust’s assets from theft, error or fraudulent activity. All financial statements that the Advisor delivers to the Trust shall be prepared on an accrual basis in accordance with generally accepted accounting principles, except for special financial reports that by their nature require a deviation from generally accepted accounting principles. The Advisor shall liaise with the Trust’s officers and independent auditors and shall provide such officers and auditors with the reports and other information that the Trust so requests;
(ig) investigate, select, and, on behalf of the TrustTrust and the Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; , property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust or the Partnership with any of the foregoing;
(jh) consult with the officers and the Board and assist the Board in the formulation and implementation of the Trust’s financial policies and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the Trust;
(ki) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Assets will be made; (iii) make investments in Assets on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the Trust where the amount of such investment does not exceed 10% of the Trust’s or the Partnership’s total assets or has otherwise been approved by the Board; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans;
(lj) provide the Board with periodic reports regarding prospective investments in Assets;
(mk) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(ol) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pm) negotiate on behalf of the Trust or the Partnership with banks or lenders for loans to be made to the TrustTrust or the Partnership, negotiate on behalf of the Trust or the Partnership with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or the Partnership or obtain loans for the TrustTrust or the Partnership, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustTrust or the Partnership;
(qn) review and analyze on-going financial information pertaining to each Asset and the overall portfolio of Assets;
(o) monitor applicable markets and obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in Assets;
(rp) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust under this Agreement;
(sq) from time to time, or at any time reasonably requested by the Board, make reports to the Board of the investment opportunities it has presented to other Advisor-sponsored programs or that it has pursued directly or through an Affiliate;
(r) provide the Trust or the Partnership with, or assist the Trust or the Partnership in arranging for, all necessary cash management services;
(ts) deliver to or maintain on behalf of the Trust or the Partnership copies of all appraisals obtained in connection with the investments in Assets;
(t) consult with the Trust’s officers and the Board and assist the Board in evaluating various liquidity events when appropriate;
(u) provide the Trust’s officers and the Board with timely updates related to the overall regulatory environment affecting the Trust, as well as managing compliance with such matters, including compliance with the Xxxxxxxx-Xxxxx Act of 2002;
(v) consult with the Trust’s officers and the Board relating to the corporate governance structure and appropriate policies and procedures related thereto;
(w) perform all reporting, record keeping, internal controls and similar matters in a manner to allow the Trust to comply with applicable law, including federal and state securities laws and the Xxxxxxxx-Xxxxx Act of 2002;
(x) upon request of the TrustTrust or the Partnership, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust or the Partnership in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust or the Partnership and handling, prosecuting and settling any claims of the TrustTrust or the Partnership, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vy) at the direction of Trust management, prepare the Trust’s periodic reports and other filings made under the Securities Exchange Act of 1934, as amended, and the Trust’s Post-Effective Amendments to the Registration Statement as well as all related prospectuses, prospectus supplements and supplemental sales literature and assist in connection with the filing of such documents with the appropriate regulatory authorities;
(z) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(waa) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xbb) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ycc) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 1 contract
Samples: Advisory Agreement (United Development Funding Income Fund V)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed PersonPermitted Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) a. serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(g) b. provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(i) c. investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(j) d. consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(k) e. subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(l) f. provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) g. obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) h. negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(q) i. obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(r) j. from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(s) k. provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(y) l. do all things necessary to assure its ability to render the services described in this Agreement;
m. deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
n. notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardTrust Managers. In performance of this undertaking, subject to the supervision of the Board Trust Managers and consistent with the provisions of the Trust’s most recent Prospectus for SharesProspectus, Declaration of Trust and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing servicesservices herein, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Trust Managers of the Board Company and assist the Board Trust Managers in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Trust Managers with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the Trust;
(k) Company; subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties and other Permitted Investments, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be madeProperties and other Permitted Investments; (iii) make investments in Assets on behalf of the Trust or the Partnership Properties and other Permitted Investments in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperties and other Permitted Investments; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(le) provide the Board Trust Managers with periodic reports regarding prospective investments in AssetsProperties and other Permitted Investments;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nf) obtain the prior approval of the Board Trust Managers (including a majority of all Independent TrusteesTrust Managers) for any and all investments in AssetsProperties and other Permitted Investments;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pg) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the Trust, Company and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qh) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in AssetsCompany;
(ri) from time to time, or at any time reasonably requested by the BoardTrust Managers, make reports to the Board Trust Managers of its performance of services to the Trust Company under this Agreement;
(sj) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yk) do all things necessary to assure its ability to render the services described in this Agreement;
(l) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties and other Permitted Investments; and
(m) notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
Samples: Advisory Agreement (Rich Uncles Real Estate Investment Trust I)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 16 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 16 as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CPA: 16 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 16’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 16’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 16 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 16;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 16, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 16 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 16 and assist the Board in the formulation and implementation of the TrustCPA: 16’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i1) locate, analyze and select potential investments in AssetsInvestments; (ii2) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 16; (iii3) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 16; (iv4) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v5) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in AssetsInvestments and with periodic reports, no less than quarterly, of (1) the occurrence of any Triggering Event during the prior fiscal quarter; and (2) the amounts of “dead deal” costs incurred by CPA: 16 during the prior fiscal quarter;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust CPA: 16 with banks or lenders for loans to be made to the TrustCPA: 16, and negotiate on behalf of the Trust CPA: 16 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 16, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 16;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rj) obtain for, or provide to, CPA: 16 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 16; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 16, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 16 under this Agreement;
(sl) communicate on behalf of CPA: 16 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 16;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 16’s business and operations;
(n) provide CPA: 16 with such accounting data and any other information requested by CPA: 16 concerning the Trust withinvestment activities of CPA: 16 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of CPA: 16;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(q) provide CPA: 16 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 16 as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of CPA: 16 as requested by the Board, and deliver to or maintain on behalf of CPA: 16 copies of, all appraisals obtained in connection with investments in Properties and Loans;
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter;
(v) monitor the performance by the Manager of its duties under the Management Agreement; and
(w) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor’s performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor’s report shall address, among other things, (a) those matters identified in CPA: 16’s organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the “dead deal” costs incurred by CPA: 16 during the past year. If a Triggering Event has occurred, the Independent Directors may consider whether, after taking account of the overall performance of the Advisor during the past year, they wish to request that the Advisor refund all or a portion of the Initial Acquisition Fee paid by CPA: 16 in respect of such Investment, and if the Independent Directors make that request, the Advisor shall refund such amount to CPA: 16 within 60 days after receipt of such request. In addition, the Independent Directors may request that the Advisor refund certain of the dead deal costs incurred by CPA: 16 if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that CPA: 16 should not bear such costs.
Appears in 1 contract
Samples: Advisory Agreement (Corporate Property Associates 16 Global Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company and the Operating Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted by the Directors, and as amended from time to time by with the Boardapproval of the Stockholders. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company and the Operating Partnership Agreement, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage serve as the formation of the Trust Company’s and the Operating Partnership, including the preparation ’s investment and filing of all necessary documentation and ancillary agreementsfinancial advisor;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(g) provide the daily management of for the Trust Company and the Operating Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany and the Operating Partnership;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany and the Operating Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property real estate management companies, transfer agents real estate operating companies, securities investment advisors, mortgagors, and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including including, but not limited to to, entering into contracts in the name of the Trust Company and the Operating Partnership with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany or the Operating Partnership;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 Section 4 hereof, (i) participate in formulating an investment strategy and asset allocation framework, (ii) locate, analyze and select potential investments in Assets; Investments, (iiiii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets acquisitions and dispositions of Investments will be made; (iiiiv) research, identify, review and recommend acquisitions and dispositions of Investments to the Board and make investments in Assets on behalf of the Trust or Company and the Operating Partnership in compliance with the investment objectives and policies of the TrustCompany; (ivv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments inwith, AssetsInvestments; and (vvi) enter into leases of Property and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives; (vii) select Joint Venture partners, including structure corresponding agreements and oversee and monitor these relationships; (viii) oversee Affiliated and non-Affiliated property managers who perform services for the servicing Company or the Operating Partnership; (ix) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of Secured Loansthe services required to be performed under this Agreement; (x) manage accounting and other record-keeping functions for the Company and the Operating Partnership; and (xi) recommend various liquidity events to the Board of Directors when appropriate;
(lf) upon request, provide the Board Directors with periodic reports regarding prospective investments in Assetsinvestments;
(mg) if a transaction requires approval make investments in, and dispositions of, Investments within the discretionary limits and authority as granted by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company and the Operating Partnership with banks or lenders for loans Loans to be made to the TrustCompany and the Operating Partnership, and negotiate on behalf of the Trust Company and the Operating Partnership with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust or obtain loans Loans for the Trust, as Company and when appropriatethe Operating Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany or the Operating Partnership;
(qi) obtain reports (which may may, but are not required to, be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsCompany and the Operating Partnership;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company and the Operating Partnership under this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its affiliates;
(sk) provide the Trust with, or assist Company and the Trust in arranging for, Operating Partnership with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to, or maintain on behalf of, the Company copies of all appraisals obtained in connection with the investments in any Real Estate Assets as may be required to be obtained by the Board;
(n) notify the Board of Directors of all proposed material transactions before they are completed; and
(o) effect any private placement of OP Units, tenancy-in-common or other interests in Investments as may be approved by the Board. Notwithstanding the foregoing, the Advisor may delegate any of the foregoing duties to any Person so long as the Advisor or any Affiliate remains responsible for the performance of the duties set forth in this Section 3.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust potential investment opportunities consistent with the investment objectives Investment Objectives and policies of the Trust as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration of Trust and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and and/or register the initial OfferingTrust’s securities offerings;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with any of the initial OfferingTrust’s securities offerings;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment Investment Objectives and policies;
(gf) provide the daily management of the Trust and perform and supervise the various administrative functions reasonably necessary for the management and operations of the Trust;
(g) coordinate and manage operations of any joint venture or co-investment interests held by the Trust and conduct all matters with the joint venture or co-investment partners;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(i) investigate, select, and, on behalf of the Trust, engage engage, supervise and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, financial advisors, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust with any of the foregoing;
(j) consult with the officers and the Board and assist the Board in the formulation and implementation of the Trust’s financial policies and, as necessary, furnish the Board with advice and recommendations (i) with respect to the making of investments consistent with the investment objectives Investment Objectives and policies of the Trust and Trust, (ii) in connection with any borrowings proposed to be undertaken by the TrustTrust and (iii) with respect to modifications to the Investment Objectives;
(k) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust or the Partnership in compliance with the investment objectives Investment Objectives and policies of the Trust; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; (v) evaluate and recommend to the Board hedging strategies and engage in hedging activities on the Trust’s behalf, consistent with such strategies as so modified from time to time, with the Trust’s qualification as a REIT and with the Investment Objectives, and (vvi) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans;
(l) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets, provided that such prior Board approval shall not be required for investments made in accordance with the Investment Objectives, but quarterly summaries of such investments shall be provided to the Board;
(o) with respect to the transactions described in Article XI of the Declaration of Trust, obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the Trust, negotiate on behalf of the Trust with counterparties for repurchase agreements, interest rate swap agreements and other agreements and instruments used in the conduct of the Trust’s business, negotiate on behalf of the Trust with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or obtain loans for the Trust, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust;
(q) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in Assets;
(r) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust under this Agreement;
(s) provide the Trust with, or assist the Trust in arranging for, all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, disbursing and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(y) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.0714, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CWI 1 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CWI 1 as determined and adopted from time to time by the Board. The Advisor will follow the Guidelines when allocating Investment opportunities among CWI 1, other entities managed by the Advisor and its Affiliates, and the Advisor and its Affiliates for their own account. The Guidelines shall not be amended without the prior approval of at least a majority of the Independent Directors. In performance of this undertakingthe foregoing undertakings, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Charter and Bylaws of CWI 1 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of or the Advisor or other duly qualified and licensed PersonSubadvisor:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCWI 1’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CWI 1’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CWI 1 and perform and supervise the various administrative functions reasonably necessary for the management of CWI 1, the Operating Partnership and operations of the TrustInvestments;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCWI 1, engage engage, oversee and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; franchisors, independent property management companies, transfer agents operators and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CWI 1 with any of the foregoing;
(jd) consult with the officers and the Board Directors and assist the Board in the formulation and implementation of the TrustCWI 1’s financial policies and, as necessary, policies; and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(h) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsInvestments and deliver to the Investment Committee, as applicable, such information as it may request or as otherwise may be necessary to enable the Investment Committee to evaluate potential Investments; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CWI 1; (iii) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCWI 1; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such; (vi) oversee such Assets, including non-affiliated property managers and other non-affiliated Persons who perform services for CWI 1; and (vii) undertake accounting and other record-keeping functions at the servicing of Secured LoansInvestment level;
(lf) provide the Board with periodic reports regarding prospective investments in AssetsInvestments and with periodic reports, no less than quarterly, of new Investments made during the prior fiscal quarter;
(mg) if a assist the Board in its evaluation of potential liquidity transactions for CWI 1 and take such actions as may be requested by the Board or as may otherwise be necessary or desirable to execute any liquidity transaction requires approval approved by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(nh) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperties which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pi) negotiate on behalf of the Trust CWI 1 with banks or lenders for loans to be made to the TrustCWI 1, and negotiate on behalf of the Trust CWI 1 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCWI 1, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCWI 1;
(qj) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rk) obtain for, or provide to, CWI 1 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CWI 1; and (iv) the handling, prosecuting and settling of any claims of or against CWI 1, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(l) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CWI 1 under this Agreement;
(sm) communicate on behalf of CWI 1 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CWI 1;
(n) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CWI 1’s business and operations;
(o) provide CWI 1 with such accounting data and any other information requested by CWI 1 concerning the Trust withinvestment activities of CWI 1 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(p) maintain the Trust books and records of CWI 1;
(q) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(r) provide CWI 1 with all necessary cash management services;
(ts) deliver provide asset management services including, without limitation, oversight and strategic guidance to or maintain on behalf independent property operators that handle day-to-day operations of the Trust copies of all appraisals obtained in connection with the investments in AssetsCWI 1’s Properties;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yt) do all things necessary to assure its ability to render the services described in this Agreement;
(u) perform such other services as may be required from time to time for management and other activities relating to the assets of CWI 1 as the Advisor shall deem advisable under the particular circumstances;
(v) arrange to obtain on behalf of CWI 1 as requested by the Board, and deliver to or maintain on behalf of CWI 1 copies of, all appraisals obtained in connection with Investments;
(w) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter; and
(x) on an annual basis, no later than 90 days prior to the end of each term of this Agreement, provide the Independent Directors with a report on (1) the Advisor's performance during the past year, (2) the compensation paid to the Advisor during such year and (3) any proposed changes to the compensation to be paid to the Advisor during the upcoming year if the Agreement is renewed. The Advisor's report shall address, among other things, (a) those matters identified in CWI 1's organizational documents as matters which the Independent Directors must review each year with respect to the Advisor’s performance and compensation; (b) whether any Triggering Event occurred with respect to an Investment made during the past year; and (c) the "dead deal" costs incurred by CWI 1 during the past year. In addition, the Independent Directors may request that the Advisor refund certain of the "dead deal" costs incurred by CWI 1 if, in light of the circumstances under which such costs were incurred, the Independent Directors determine that CWI 1 should not bear such costs.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) a. serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(g) b. provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(i) c. investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(j) d. consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the Trust’s Company's financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(k) e. subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(l) f. provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) g. obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) h. negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(q) i. obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(r) j. from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company under this Agreement;
(s) k. provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(y) l. do all things necessary to assure its ability to render the services described in this Agreement;
m. deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and n. notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for SharesRegistration Statement, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(iParagraphs 3(g) and 2.03 4 hereof, (i) locate, analyze and select potential investments in Assets; Properties, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Properties will be made; (iii) make investments in Assets Properties on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsProperty; and (v) enter into leases of Property and service contracts for Assets Company Property and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansCompany Property;
(lf) provide the Board Directors with periodic reports regarding prospective investments in AssetsProperties;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board Directors (including a majority of all Independent TrusteesDirectors) for any and all investments in AssetsProperties;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in AssetsProperties;
(rj) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sk) from time to time, or at any time reasonably requested by the Board, make reports to the Board of the investment opportunities it has presented to the Xxxxx-sponsored programs or has pursued directly or through an affiliate;
(l) at any time reasonably requested by the Board furnish other information requested by the Board;
(m) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yn) do all things necessary to assure its ability to render the services described in this Agreement;
(o) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Properties; and
(p) notify the Board of all proposed material transactions before they are completed.
Appears in 1 contract
Samples: Advisory Agreement (Wells Real Estate Investment Trust Ii Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07The Advisor, the Advisor undertakes to use in its commercially reasonable best efforts to present to the Trust potential investment opportunities consistent with the investment objectives and policies capacity as manager of the Trust as determined assets and adopted from time to time by the Board. In performance day-to-day operations of this undertakingthe REIT Parties, at all times will be subject to the supervision of the REIT’s Board of Trustees and consistent with the provisions Managers, as applicable, and will have only such functions and authority as the REIT Parties may delegate to it including, without limitation, the functions and authority identified herein and delegated to the Advisor hereby. The Advisor will be responsible for the day-to-day operations of the Trust’s most recent Prospectus for Shares, Declaration REIT Parties and will perform (or cause to be performed through one or more of Trust its Affiliates or subsidiaries) such services and Bylaws, activities relating to the Advisor shall, either directly or by engaging a duly qualified assets and licensed Affiliate operations of the Advisor or other duly qualified and licensed PersonREIT Parties as may be appropriate, including, without limitation:
(a) manage serve as the formation of the Trust REIT Parties’ investment and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreementsfinancial advisor;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(g) provide the daily management of for the Trust REIT Parties, including a chief executive officer, chief financial officer and chief investment officer, and perform and supervise the various administrative functions reasonably necessary for the day-to-day management and of the operations of the TrustREIT Parties, including the administrative services described on Exhibit A to this Agreement;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustREIT Parties, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including including, but not limited to to, consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property real estate management companies, real estate operating companies, securities investment advisors, mortgagors, the registrar and the transfer agents agent and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including including, but not limited to to, entering into contracts in the name of the Trust REIT Parties with any of the foregoing;
(jd) consult with the officers officers, Trustees and Managers of the Board REIT Parties, as applicable, and assist the Board Trustees and Managers in the formulation and implementation of the Trust’s REIT Parties’ (including as it relates to any of their respective subsidiaries) financial policies policies, and, as necessary, furnish the Board and the Managers, as applicable, with advice and recommendations with respect to the making of investments consistent with the investment objectives Investment Guidelines and policies Operating Policies (including, as it relates to any of the Trust their respective subsidiaries) and in connection with any borrowings proposed to be undertaken by the TrustREIT Parties and their respective subsidiaries;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 Section 4 hereof, (i) participate in formulating an investment strategy and asset allocation framework, (ii) locate, analyze and select potential investments in Assets; Investments, (iiiii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets acquisitions and dispositions of Investments will be mademade (including performing due diligence); (iiiiv) research, identify, review and recommend acquisitions and dispositions of Investments to the Board and the Managers and make investments in Assets Investments on behalf of the Trust or the Partnership REIT Parties in compliance with the investment objectives Investment Guidelines and policies of the TrustOperating Policies; (ivv) negotiate the terms of and arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments inwith, AssetsInvestments; (vi) negotiate and (v) enter into leases of Property and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the REIT Parties’ investment objectives and reviewing and analyzing financial information for each of the Investments and the overall portfolio; (viii) select Joint Venture partners, structure and negotiate corresponding agreements and oversee and monitor these relationships; (ix) research, negotiate, select, engage, oversee, supervise and evaluate property managers who perform services for the REIT Parties; (x) engage, oversee, supervise and evaluate Persons with whom the Advisor contracts to perform certain of the services required to be performed under this Agreement; (xi) manage accounting and other record-keeping functions for the REIT Parties, including reviewing and analyzing the servicing of Secured Loanscapital and operating budgets for the Real Estate Assets and generating an annual budget for the REIT Parties and if requested, their respective subsidiaries; (xii) manage the REIT Parties’ capital improvement program including determining when to execute the program at each Real Estate Asset; and (xiii) recommend various liquidity events to the Board and the Managers when appropriate;
(lf) upon request, but no less than quarterly, provide the Board and the Managers with periodic reports regarding prospective investments in Assetsinvestments;
(mg) if a transaction requires approval negotiate the terms of and make investments in, and dispositions of, Investments within the discretionary limits and authority as granted by the Board, deliver to Board and the Board all documents required by them to properly evaluate the proposed transactionManagers;
(nh) obtain within the prior approval of discretionary limits and authority as granted by the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the TrustManagers, negotiate on behalf of the Trust REIT Parties with banks or other lenders for Loans to be made to or guaranteed by the REIT Parties, and negotiate on behalf of the REIT Parties with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Units or obtain loans Loans for the Trust, as and when appropriateREIT Parties, but in no event in such a way manner so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trustapplicable REIT Party, or in the case of any guarantee of any obligations of the Operating Partnership, the Operating Partnership;
(qi) at least quarterly, and at any other time reasonably requested by the Board or the Managers, obtain reports (which may may, but are not required to, be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsREIT Parties or their respective subsidiaries;
(rj) from time to timeat least quarterly, or and at any other time reasonably requested by the BoardBoard or the Managers, make reports to the Board or the Managers, as applicable, of its performance of services to the Trust REIT Parties under this AgreementAgreement (including reports with respect to potential conflicts of interest involving the Advisor or any of its Affiliates), the composition and characteristics of the REIT Parties’ portfolio, and compliance with the Investment Guidelines and Operating Policies and other policies approved from time to time by the Board or the Managers;
(sk) provide the Trust with, or assist the Trust in arranging for, REIT Parties with all necessary cash management services;
(tl) deliver to to, or maintain on behalf of of, the Trust REIT Parties copies of all appraisals obtained in connection with the investments in Assetsany Real Estate Assets as may be required to be obtained by the Board or the Managers;
(um) upon request notify the Board and the Managers of all proposed transactions outside of the Trust, act, Advisor’s delegated authority before they are completed and obtain Board or obtain the services of others to actManagers approval, as attorney-in-fact or agent applicable, of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assetssame;
(vn) supervise negotiate and effect any interests in Investments as may be approved by the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of Board or the Trust in connection with investor relationsManagers;
(wo) provide office space, equipment perform investor-relations and personnel as required Unitholder communications functions for the performance of the foregoing services as AdvisorREIT;
(xp) render such services as may be reasonably determined by the Board of Trustees or the Managers consistent with the terms and conditions herein;
(q) maintain the REIT Parties’ accounting and other records and assist the Trust each REIT Party in preparing filing all reports and returns required to be filed by it under applicable Securities Laws, the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental regulatory agencies; and;
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) advise the REIT Parties regarding the maintenance of the REIT Parties’ qualification as Real Estate Investment Trusts and monitor the REIT Parties’ compliance with the various Real Estate Investment Trust qualification requirements and other rules set forth in the Code and any applicable treasury regulations promulgated under the Code, as amended from time to time, and use its commercially reasonable efforts to cause the REIT Parties to qualify as Real Estate Investment Trusts and maintain their qualification as Real Estate Investment Trusts for U.S. federal income tax purposes;
(t) assist the REIT Parties in qualifying to do business in all applicable jurisdictions in which the REIT Parties or their respective subsidiaries do business, and ensure that the REIT Parties and their respective subsidiaries obtain and maintain all applicable licenses;
(u) assist the REIT Parties in complying with all regulatory requirements applicable to them with respect to their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under Securities Laws;
(v) if requested by the REIT Parties, provide, or cause another qualified third party to provide, such internal audit, compliance and control services as may be required for the REIT Parties and their respective subsidiaries to comply with applicable law (including Securities Laws), and as otherwise requested by the Board or the Managers, as applicable;
(w) handle and resolve on behalf of the REIT Parties and their respective subsidiaries all routine claims, disputes or controversies, including all routine litigation, securities regulator proceedings, arbitration, settlement or other proceedings or negotiations, in which the REIT Parties or their respective subsidiaries may be involved or to which they may become subject, subject to such limitations or parameters as may be imposed from time to time by the Board or the Managers; and
(x) use commercially reasonable efforts to cause the REIT Parties and their respective subsidiaries to comply with all applicable laws. Notwithstanding the foregoing, the Advisor may delegate any of the foregoing duties to any Person so long as the Advisor remains responsible for the performance of the duties set forth in this Section 3; provided, however, that the delegation by the Advisor of any of the foregoing duties to another Person shall not result in an increased Advisory Fee or additional expenses payable hereunder.
Appears in 1 contract
Samples: Advisory Agreement (Nexpoint Diversified Real Estate Trust)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust (including in its capacity as general partner of the Controlled Partnership) and the Controlled Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of Investment Guidelines, the Trust’s most recent Prospectus for Shares, Declaration of Trust and the Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s and the Controlled Partnership’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Trust’s and the TrustControlled Partnership’s assets and investment policies;
(gb) provide the daily management of the Trust and the Controlled Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the Trust;
(h) maintain Trust and preserve the books Controlled Partnership, including: the collection of revenues and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership payment of the Trust’s Sharesand the Controlled Partnership’s debts and obligations; maintenance of appropriate computer services to perform such administrative functions; keeping the Trust’s and the Controlled Partnership’s books and records; and organizing meetings of the Board;
(ic) investigate, select, and, on behalf of the TrustTrust and the Controlled Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, appraisers, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property managers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust and the Controlled Partnership, with any of the foregoing;
(jd) consult with the officers and the Board Trustees and assist the Board Trustees in the formulation and implementation of the Trust’s financial policies financial, valuation and other policies, and, as necessary, furnish the Board Trustees with advice and recommendations with respect to the making of investments and dispositions consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustTrust or the Controlled Partnership;
(k) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; Investments to be made by the Trust or the Controlled Partnership, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be mademade and disposed of by the Trust and the Controlled Partnership; (iii) make investments in Assets and dispose of Investments on behalf of the Trust or and the Controlled Partnership in compliance with the investment objectives and policies of the TrustTrust and the Controlled Partnership; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsTrust’s and the Controlled Partnership’s Investments; and (v) enter into leases of Property and service contracts for Assets on behalf of the Trust and the Controlled Partnership and their respective assets and Investments and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansTrust and the Controlled Partnership and their respective assets and Investments;
(lf) provide the Board Trustees with periodic reports regarding prospective investments in AssetsInvestments to be made by the Trust and the Controlled Partnership;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pg) negotiate on behalf of the Trust and the Controlled Partnership with banks or lenders for loans to be made to the TrustTrust or the Controlled Partnership, and negotiate on behalf of the Trust or the Controlled Partnership with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateTrust or the Controlled Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustTrust or the Controlled Partnership, as applicable;
(qh) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in Assetsor the Controlled Partnership;
(ri) from time to time, or at any time reasonably requested by the BoardTrustees, make reports to the Board Trustees of its performance of services to the Trust or the Controlled Partnership under this Agreement;
(sj) provide the Trust with, or assist and the Trust in arranging for, Controlled Partnership with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yk) do all things necessary to assure its ability to render the services described in this Agreement;
(l) deliver to or maintain on behalf of the Trust or the Controlled Partnership, as applicable, copies of all appraisals obtained in connection with the investments in Properties;
(m) arrange, negotiate, coordinate and manage operations of any joint venture or co-investment interests held by the Trust or the Controlled Partnership and conduct all matters with any joint venture or co-investment partners;
(n) communicate on the Trust’s or the Controlled Partnership’s behalf with the respective holders of any of the Trust’s or the Controlled Partnership’s equity or debt securities as required to satisfy the reporting and other requirements of any governmental bodies or agencies and to maintain effective relations with such holders;
(o) evaluate and recommend to the Board modifications to the hedging strategies in effect and cause the Trust to engage in overall hedging strategies consistent with the Trust’s status as a REIT and with the Trust’s Investment Guidelines;
(p) advise the Trust regarding the maintenance of the Trust’s status as a REIT and monitor compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(q) advise the Trust regarding the maintenance of the Trust’s exemption from the Investment Company Act of 1940, as amended (the “Investment Company Act”), and monitor compliance with the requirements for maintaining an exemption from that Act;
(r) monitor the operating performance of the Trust’s and the Controlled Partnership’s Investments and provide periodic reports with respect thereto to the Board, including comparative information with respect to such operating performance and budgeted or projected operating results;
(s) invest or reinvest any money of the Trust or the Controlled Partnership (including investing in short-term Investments pending investment in long- term Investments, payment of fees, costs and expenses, or payments of distributions to the Trust’s shareholders and the Controlled Partnership’s partners), and advise the Trust and the Controlled Partnership as to the Trust’s or the Controlled Partnership’s respective capital structure and capital raising;
(t) cause the Trust and the Controlled Partnership to retain qualified accountants and legal counsel, as applicable, to assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the REIT provisions of the Code and to conduct quarterly compliance reviews thereto, as applicable;
(u) cause the Trust and the Controlled Partnership to qualify to do business in all applicable jurisdictions and to obtain and maintain all appropriate licenses;
(v) assist the Trust in maintaining the registration of the Shares under federal securities laws (including the Xxxxxxxx-Xxxxx Act of 2002) and complying with all federal, state and local regulatory requirements applicable to the Trust in respect of the Trust’s business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Securities Exchange Act of 1934, as amended;
(w) take all necessary actions to enable the Trust and the Controlled Partnership to make required tax filings and reports, including soliciting shareholders for required information to the extent provided by the REIT provisions of the Code;
(x) handle and resolve all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Trust or the Controlled Partnership may be involved or to which the Trust or the Controlled Partnership may be subject, arising out of the Trust’s or the Controlled Partnership’s day-to-day operations, subject to such limitations or parameters as may be imposed from time-to-time by the Board;
(y) use commercially reasonable efforts to cause expenses incurred by or on behalf of the Trust and the Controlled Partnership to be reasonable or customary and within any budgeted parameters or expense guidelines set by the Board from time-to-time;
(z) perform such other services as may be required from time-to-time for management and other activities relating to the Trust’s and the Controlled Partnership’s respective assets as the Board will reasonably request or the Advisor will deem appropriate under the particular circumstances;
(aa) use commercially reasonable efforts to cause the Trust and the Controlled Partnership to comply with all applicable laws; and
(bb) calculate the Trust’s and the Controlled Partnership’s respective net asset values, recommend independent valuation experts and appraisers and perform valuations and other services, each as provided in the Valuation Guidelines.
Appears in 1 contract
Samples: Investment Advisory Agreement (Fidelity Property Income Trust)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company and the Operating Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardDirectors. In performance of this undertaking, subject to the supervision of the Board Directors and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and BylawsBylaws of the Company and the Operating Partnership Agreement, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage serve as the formation of the Trust Company’s and the Operating Partnership, including the preparation ’s investment and filing of all necessary documentation and ancillary agreementsfinancial advisor;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policies;
(g) provide the daily management of for the Trust Company and the Operating Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany and the Operating Partnership;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany and the Operating Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property real estate management companies, transfer agents real estate operating companies, securities investment advisors, mortgagors, and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company and the Operating Partnership with any of the foregoing;
(jd) consult with the officers and Directors of the Board Company and assist the Board Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany or the Operating Partnership;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 Paragraph 4 hereof, (i) participate in formulating an investment strategy and asset allocation framework, (ii) locate, analyze and select potential investments in Assets; Investments, (iiiii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets acquisitions and dispositions of Investments will be made; (iiiiv) research, identify, review and recommend acquisitions and dispositions of Investments to the Board and make investments in Assets on behalf of the Trust or Company and the Operating Partnership in compliance with the investment objectives and policies of the TrustCompany; (ivv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments inwith, AssetsInvestments; and (vvi) enter into leases of Property and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives; (vii) select Joint Venture partners, including structure corresponding agreements and oversee and monitor these relationships; (viii) oversee Affiliated and non-Affiliated property managers who perform services for the servicing Company or the Operating Partnership; (ix) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of Secured Loans;the services required to be performed under this Agreement; (x) manage accounting and other record-keeping functions for the Company and the Operating Partnership; and (xi) recommend various liquidity events to the Board of Directors when appropriate.
(lf) upon request provide the Board Directors with periodic reports regarding prospective investments in Assetsinvestments;
(mg) if a transaction requires approval make investments in and dispositions of Investments within the discretionary limits and authority as granted by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust Company and the Operating Partnership with banks or lenders for loans Loans to be made to the TrustCompany and the Operating Partnership, and negotiate on behalf of the Trust Company and the Operating Partnership with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust or obtain loans Loans for the Trust, as Company and when appropriatethe Operating Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany or the Operating Partnership;
(qi) obtain reports (which may but are not required to be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust Company and the Operating Partnership in AssetsInvestments;
(rj) from time to time, or at any time reasonably requested by the BoardDirectors, make reports to the Board Directors of its performance of services to the Trust Company and the Operating Partnership under this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its affiliates;
(sk) provide the Trust with, or assist Company and the Trust in arranging for, Operating Partnership with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yl) do all things necessary to assure its ability to render the services described in this Agreement;
(m) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in any Real Estate Assets as may be required to be obtained by the Board;
(n) notify the Board of Directors of all proposed material transactions before they are completed; and
(o) effect any private placement of OP Units, tenancy-in-common or other interests in Investments as may be approved by the Board. Notwithstanding the foregoing, the Advisor may delegate any of the foregoing duties to any Person so long as the Advisor or any Affiliate remains responsible for the performance of the duties set forth in this Paragraph 3.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of the Company and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s Company's investment and financial advisor and provide research and economic and statistical data in connection with the Assets Company's assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with Directors of the officers and the Board Company and assist the Board in the formulation and implementation of the Trust’s financial policies andCompany's policies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in Investment Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Investment Assets will be made, purchased or acquired by the Company; (iii) make investments in Investment Assets on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Investment Assets; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments in Investment Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in Assets;
(oProperty which do not meet all of the requirements set forth in Section 4(b) hereof and obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested Directors for all investments in any transaction with the Advisor or its AffiliatesLoans;
(ph) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, and negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCompany, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Investment Assets;
(rj) obtain for, or provide to, the Company such services as may be required in acquiring, managing and disposing of Investment Assets, including, but not limited to: (i) the negotiation, making and servicing of Loans; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of the Company; and (iv) the handling, prosecuting and settling of any claims of or against the Company, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company under this Agreement;
(sl) communicate on behalf of the Company with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by the Company;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to the Company's business and operations;
(n) provide the Trust withCompany with such accounting data and any other information requested by the Company concerning the investment activities of the Company as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of the Company;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of the Company as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of the Company as requested by the Board, and deliver to or maintain on behalf of the Company copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
Appears in 1 contract
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust CPA: 17 potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust CPA: 17 as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Articles of Incorporation and Bylaws of CPA: 17 and any Prospectus for Shares, Declaration of Trust and Bylawspursuant to which Shares are offered, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCPA: 17’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets CPA: 17’s assets and the Trust’s investment policies;
(gb) provide the daily management of the Trust CPA: 17 and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCPA: 17;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCPA: 17, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust CPA: 17 with any of the foregoing;
(jd) consult with the officers and the Board Directors of CPA: 17 and assist the Board in the formulation and implementation of the TrustCPA: 17’s financial policies andpolicies, as necessary, and furnish the Board with such information, advice and recommendations as they may request or as otherwise may be necessary to enable them to discharge their fiduciary duties with respect to matters coming before the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustBoard;
(ke) subject to the provisions of Sections 2.02(i3(g) and 2.03 4 hereof, : (i) locate, analyze and select potential investments in AssetsInvestments; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be made, purchased or acquired by CPA: 17; (iii) make investments in Assets Investments on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the TrustCPA: 17; (iv) arrange for financing and refinancing and of, make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsInvestments; and (v) enter into leases of Property and service contracts for Assets Properties and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansProperties;
(lf) provide the Board with periodic reports regarding prospective investments Investments and with periodic reports, no less than quarterly, of new Investments made during the prior fiscal quarter, which reports shall include information regarding the type of each Investment made (in Assetsthe categories provided in Section 9);
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(ng) obtain the prior approval of the Board (including a majority of all the Independent TrusteesDirectors) for any and all investments in AssetsProperty which do not meet all of the requirements set forth in Section 4(b) hereof;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(ph) negotiate on behalf of the Trust CPA: 17 with banks or lenders for loans to be made to the TrustCPA: 17, and negotiate on behalf of the Trust CPA: 17 with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateCPA: 17, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCPA: 17;
(qi) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsInvestments;
(rj) obtain for, or provide to, CPA: 17 such services as may be required in acquiring, managing and disposing of Investments, including, but not limited to: (i) the negotiation, making and servicing of Investments; (ii) the disbursement and collection of Company monies; (iii) the payment of debts of and fulfillment of the obligations of CPA: 17; and (iv) the handling, prosecuting and settling of any claims of or against CPA: 17, including, but not limited to, foreclosing and otherwise enforcing mortgages and other liens securing Loans;
(k) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust CPA: 17 under this Agreement;
(sl) communicate on behalf of CPA: 17 with Shareholders as required to satisfy the reporting and other requirements of any governmental bodies or agencies to Shareholders and third parties and otherwise as requested by CPA: 17;
(m) provide or arrange for administrative services and items, legal and other services, office space, office furnishings, personnel and other overhead items necessary and incidental to CPA: 17’s business and operations;
(n) provide CPA: 17 with such accounting data and any other information requested by CPA: 17 concerning the Trust withinvestment activities of CPA: 17 as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the Securities and Exchange Commission and any other regulatory agency, or assist including annual financial statements;
(o) maintain the Trust books and records of CPA: 17;
(p) supervise the performance of such ministerial and administrative functions as may be necessary in arranging for, connection with the daily operations of the Investments;
(q) provide CPA: 17 with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yr) do all things necessary to assure its ability to render the services described in this Agreement;
(s) perform such other services as may be required from time to time for management and other activities relating to the assets of CPA: 17 as the Advisor shall deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of CPA: 17 as requested by the Board, and deliver to or maintain on behalf of CPA: 17 copies of, all appraisals obtained in connection with investments in Properties and Loans; and
(u) if a transaction, proposed transaction or other matter requires approval by the Board or by the Independent Directors, deliver to the Board or the Independent Directors, as the case may be, all documentation reasonably requested by them to properly evaluate such transaction, proposed transaction or other matter.
Appears in 1 contract
Samples: Advisory Agreement (Corporate Property Associates 17 - Global INC)
DUTIES OF THE ADVISOR. Subject to Section 2.07The Advisor, the Advisor undertakes to use in its commercially reasonable best efforts to present to the Trust potential investment opportunities consistent with the investment objectives and policies capacity as manager of the Trust as determined assets and adopted from time to time by the Board. In performance day-to-day operations of this undertakingthe Company, at all times will be subject to the supervision of the Board Manager and consistent with will have only such functions and authority as the provisions Company may delegate to it including, without limitation, the functions and authority identified herein and delegated to the Advisor hereby. The Advisor will be responsible for the day-to-day operations of the Trust’s most recent Prospectus for Shares, Declaration of Trust Company and Bylaws, will perform (or cause to be performed) such services and activities relating to the Advisor shall, either directly or by engaging a duly qualified assets and licensed Affiliate operations of the Advisor or other duly qualified and licensed PersonCompany as may be appropriate, including, without limitation:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the Trust’s investment policiesadvisor;
(gb) provide the daily management of for the Trust Company and perform and supervise the various administrative functions reasonably necessary for the day-to-day management and of the operations of the TrustCompany, including the administrative services described on Exhibit A to this Agreement;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(ic) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including including, but not limited to to, consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property real estate management companies, real estate operating companies, securities investment advisors, mortgagors, the registrar and the transfer agents agent and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including including, but not limited to to, entering into contracts in the name of the Trust Company with any of the foregoing;
(jd) consult with the officers and the Board Manager and assist the Board Manager in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board Manager with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 Section 4 hereof, (i) participate in formulating an investment strategy and asset allocation framework, (ii) locate, analyze and select potential investments in Assets; Investments, (iiiii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets acquisitions and dispositions of Investments will be made; (iiiiv) research, identify, review and recommend acquisitions and dispositions of Investments to the Manager and make investments in Assets Investments on behalf of the Trust or the Partnership Company in compliance with the investment objectives and policies of the TrustCompany; (ivv) negotiate the terms of and arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments inwith, AssetsInvestments; (vi) negotiate and (v) enter into leases of Property and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives and reviewing and analyzing financial information for each of the Investments and the overall portfolio; (viii) select Joint Venture partners, structure and negotiate corresponding agreements and oversee and monitor these relationships; (ix) engage, oversee, supervise and evaluate property managers who perform services for the Company; (x) engage, oversee, supervise and evaluate Persons with whom the Advisor contracts to perform certain of the services required to be performed under this Agreement; and (xi) manage accounting and other record-keeping functions for the Company, including reviewing and analyzing the servicing of Secured Loanscapital and operating budgets for the Real Estate Assets and generating an annual budget for the Company;
(lf) upon request, but no less than quarterly, provide the Board Manager with periodic reports regarding prospective investments in Assetsinvestments;
(mg) if a transaction requires approval negotiate the terms of and make investments in, and dispositions of, Investments within the discretionary limits and authority as granted by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transactionManager;
(nh) obtain within the prior approval of discretionary limits and authority as granted by the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the TrustManager, negotiate on behalf of the Trust Company with banks or other lenders for Loans to be made to the Company, and negotiate on behalf of the Company with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust or obtain loans Loans for the Trust, as and when appropriateCompany, but in no event in such a way manner so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qi) at least quarterly, and at any other time reasonably requested by the Manager, obtain reports (which may may, but are not required to, be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments Investments or contemplated investments of the Trust in AssetsCompany;
(rj) from time to timeat least quarterly, or and at any other time reasonably requested by the BoardManager, make reports to the Board Manager of its performance of services to the Trust Company under this AgreementAgreement (including reports with respect to potential conflicts of interest involving the Advisor or any of its Affiliates), the composition and characteristics of the Company’s portfolio, and compliance with the Company’s Investment Guidelines and other policies approved from time to time by the Manager;
(sk) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(tl) deliver to to, or maintain on behalf of of, the Trust Company copies of all appraisals obtained in connection with the investments in Assetsany Real Estate Assets as may be required to be obtained by the Manager;
(um) upon request notify the Manager of all proposed transactions outside of the TrustAdvisor’s delegated authority before they are completed and obtain Manager approval of same;
n) negotiate and effect any private placement of limited partnership interests, act, or obtain the services of others to act, as attorneytenancy-in-fact common (TIC) or agent of other interests in Investments as may be approved by the Trust in making, acquiring Manager;
o) render such services as may be reasonably determined by the Manager consistent with the terms and disposing of Assets, disbursing, and collecting conditions herein;
p) maintain the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage Company’s accounting and other liens records and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust Company in preparing filing all reports and returns required to be filed by it with the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental regulatory agencies; and;
(yq) do all things necessary to assure its ability to render the services described in this Agreement;
r) advise the Company regarding the maintenance of the Company’s qualification as a REIT and monitor the Company’s compliance with the various REIT qualification requirements and other rules set forth in the Code and any applicable treasury regulations promulgated under the Code, as amended from time to time, and use its commercially reasonable efforts to cause the Company to maintain its qualification as a REIT for U.S. federal income tax purposes;
s) advise the Company regarding the maintenance of its exemption from the status of an investment company required to register under the 1940 Act, and monitor compliance with the requirements for maintaining such exemption and using commercially reasonable efforts to cause it to maintain such exemption from such status;
t) assist the Company in qualifying to do business in all applicable jurisdictions in which the Company or its subsidiaries do business, and ensure that the Company and its subsidiaries obtain and maintain all applicable licenses;
u) assist the Company in complying with all regulatory requirements applicable to them with respect to their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings;
v) if requested by the Company, provide, or cause another qualified third party to provide, such internal audit, compliance and control services as may be requested;
w) handle and resolve on behalf of the Company (including its subsidiaries) all routine claims, disputes or controversies, including all routine litigation, arbitration, settlement or other proceedings or negotiations, in which the Company or its subsidiaries may be involved or to which they may become subject, subject to such limitations or parameters as may be imposed from time to time by the Manager; and
x) use commercially reasonable efforts to cause the Company and its subsidiaries to comply with all applicable laws.
Appears in 1 contract
Samples: Advisory Agreement (Nexpoint Real Estate Strategies Fund)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust (including in its capacity as general partner of the Controlled Partnership) and the Controlled Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of Investment Guidelines, the Trust’s most recent Prospectus for Shares, Declaration of Trust and the Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Personan Affiliate:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the Trust’s and the Controlled Partnership’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets Trust’s and the TrustControlled Partnership’s assets and investment policies;
(gb) provide the daily management of the Trust and the Controlled Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the Trust;
(h) maintain Trust and preserve the books Controlled Partnership, including: the collection of revenues and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership payment of the Trust’s Sharesand the Controlled Partnership’s debts and obligations; maintenance of appropriate computer services to perform such administrative functions; keeping the Trust’s and the Controlled Partnership’s books and records; and organizing meetings of the Board;
(ic) investigate, select, and, on behalf of the TrustTrust and the Controlled Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, appraisers, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property managers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust and the Controlled Partnership, with any of the foregoing;
(jd) consult with the officers and the Board Trustees and assist the Board Trustees in the formulation and implementation of the Trust’s financial policies financial, valuation and other policies, and, as necessary, furnish the Board Trustees with advice and recommendations with respect to the making of investments and dispositions consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the TrustTrust or the Controlled Partnership;
(ke) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; Investments to be made by the Trust or the Controlled Partnership, (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets Investments will be mademade and disposed of by the Trust and the Controlled Partnership; (iii) make investments in Assets and dispose of Investments on behalf of the Trust or and the Controlled Partnership in compliance with the investment objectives and policies of the TrustTrust and the Controlled Partnership; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, AssetsTrust’s and the Controlled Partnership’s Investments; and (v) enter into leases of Property and service contracts for Assets on behalf of the Trust and the Controlled Partnership and their respective assets and Investments and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansTrust and the Controlled Partnership and their respective assets and Investments;
(lf) provide the Board Trustees with periodic reports regarding prospective investments in AssetsInvestments to be made by the Trust and the Controlled Partnership;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pg) negotiate on behalf of the Trust and the Controlled Partnership with banks or lenders for loans to be made to the TrustTrust or the Controlled Partnership, and negotiate on behalf of the Trust or the Controlled Partnership with investment banking firms and broker-dealers, and dealers or negotiate private sales of Shares and other securities of the Trust Securities or obtain loans for the Trust, as and when appropriateTrust or the Controlled Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustTrust or the Controlled Partnership, as applicable;
(qh) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust in Assetsor the Controlled Partnership;
(ri) from time to time, or at any time reasonably requested by the BoardTrustees, make reports to the Board Trustees of its performance of services to the Trust or the Controlled Partnership under this Agreement;
(sj) provide the Trust with, or assist and the Trust in arranging for, Controlled Partnership with all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust and handling, prosecuting and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(v) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders and other investors and act on behalf of the Trust in connection with investor relations;
(w) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(yk) do all things necessary to assure its ability to render the services described in this Agreement;
(l) deliver to or maintain on behalf of the Trust or the Controlled Partnership, as applicable, copies of all appraisals obtained in connection with the investments in Properties;
(m) arrange, negotiate, coordinate and manage operations of any joint venture or co-investment interests held by the Trust or the Controlled Partnership and conduct all matters with any joint venture or co-investment partners;
(n) communicate on the Trust’s or the Controlled Partnership’s behalf with the respective holders of any of the Trust’s or the Controlled Partnership’s equity or debt securities as required to satisfy the reporting and other requirements of any governmental bodies or agencies and to maintain effective relations with such holders;
(o) evaluate and recommend to the Board modifications to the hedging strategies in effect and cause the Trust to engage in overall hedging strategies consistent with the Trust’s status as a REIT and with the Trust’s Investment Guidelines;
(p) advise the Trust regarding the maintenance of the Trust’s status as a REIT and monitor compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(q) advise the Trust regarding the maintenance of the Trust’s exemption from the Investment Company Act of 1940, as amended (the “Investment Company Act”), and monitor compliance with the requirements for maintaining an exemption from that Act;
(r) monitor the operating performance of the Trust’s and the Controlled Partnership’s Investments and provide periodic reports with respect thereto to the Board, including comparative information with respect to such operating performance and budgeted or projected operating results;
(s) invest or reinvest any money of the Trust or the Controlled Partnership (including investing in short-term Investments pending investment in long-term Investments, payment of fees, costs and expenses, or payments of distributions to the Trust’s shareholders and the Controlled Partnership’s partners), and advise the Trust and the Controlled Partnership as to the Trust’s or the Controlled Partnership’s respective capital structure and capital raising;
(t) cause the Trust and the Controlled Partnership to retain qualified accountants and legal counsel, as applicable, to assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the REIT provisions of the Code and to conduct quarterly compliance reviews thereto, as applicable;
(u) cause the Trust and the Controlled Partnership to qualify to do business in all applicable jurisdictions and to obtain and maintain all appropriate licenses;
(v) assist the Trust in maintaining the registration of the Shares under federal securities laws (including the Xxxxxxxx-Xxxxx Act of 2002) and complying with all federal, state and local regulatory requirements applicable to the Trust in respect of the Trust’s business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Securities Exchange Act of 1934, as amended;
(w) take all necessary actions to enable the Trust and the Controlled Partnership to make required tax filings and reports, including soliciting shareholders for required information to the extent provided by the REIT provisions of the Code;
(x) handle and resolve all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Trust or the Controlled Partnership may be involved or to which the Trust or the Controlled Partnership may be subject, arising out of the Trust’s or the Controlled Partnership’s day-to-day operations, subject to such limitations or parameters as may be imposed from time-to-time by the Board;
(y) use commercially reasonable efforts to cause expenses incurred by or on behalf of the Trust and the Controlled Partnership to be reasonable or customary and within any budgeted parameters or expense guidelines set by the Board from time-to-time;
(z) perform such other services as may be required from time-to-time for management and other activities relating to the Trust’s and the Controlled Partnership’s respective assets as the Board will reasonably request or the Advisor will deem appropriate under the particular circumstances;
(aa) use commercially reasonable efforts to cause the Trust and the Controlled Partnership to comply with all applicable laws; and
(bb) calculate the Trust’s and the Controlled Partnership’s respective net asset values, recommend independent valuation experts, third-party appraisal managers and appraisers and perform valuations and other services, each as provided in the Valuation Guidelines.
Appears in 1 contract
Samples: Investment Advisory Agreement (Fidelity Property Income Trust)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the The Advisor undertakes to use its commercially reasonable best efforts to present to the Trust Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the BoardBoard of Directors. In performance of this undertaking, subject to the supervision of the Board of Directors and consistent with the provisions of the TrustCompany’s most recent Prospectus for Shares, Declaration Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed an Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the TrustCompany’s investment policies;
(gb) provide the daily management of the Trust Company and perform and supervise the various administrative functions reasonably necessary for the management and operations of the TrustCompany;
(hc) maintain and preserve the books and records of the TrustCompany, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the TrustCompany’s uncertificated Shares, if any, and acting as transfer agent for the Company’s Shares;
(id) investigate, select, and, on behalf of the TrustCompany, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust Company with any of the foregoing;
(je) consult with the officers and the Board of Directors and assist the Board of Directors in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board of Directors with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the TrustCompany;
(kf) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust Company or the Partnership in compliance with the investment objectives and policies of the TrustCompany; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured LoansMortgages;
(lg) provide the Board of Directors with periodic reports regarding prospective investments in Assets;
(mh) if If a transaction requires approval by the BoardBoard of Directors, deliver to the Board of Directors all documents required by them to properly evaluate the proposed transaction;
(ni) obtain the prior approval of the Board (including a majority of all Independent Trustees) Directors for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(pj) negotiate on behalf of the Trust Company with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the TrustCompany;
(qk) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company in Assets;
(rl) from time to time, or at any time reasonably requested by the BoardBoard of Directors, make reports to the Board of Directors of its performance of services to the Trust Company under this Agreement;
(sm) provide the Trust with, or assist the Trust in arranging for, Company with all necessary cash management services;
(tn) deliver to or maintain on behalf of the Trust Company copies of all appraisals obtained in connection with the investments in Assets;
(uo) upon request of the TrustCompany, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company in making, acquiring requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company and handling, prosecuting and settling any claims of the TrustCompany, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;
(vp) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;
(wq) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;
(xr) assist prepare on behalf of the Trust in preparing Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; and
(ys) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 1 contract
Samples: Advisory Agreement (Cole Credit Property Trust Inc)
DUTIES OF THE ADVISOR. Subject to Section 2.07, the Advisor undertakes to use its commercially reasonable best efforts to present to the Trust potential Company, OP I and the Partnership investment opportunities consistent with the investment objectives and policies of the Trust Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the TrustCompany’s most recent Prospectus for Shares, Declaration other public filings made by the Company, Articles of Trust Incorporation and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage find, evaluate, present and recommend to the formation of Company investment opportunities consistent with the Trust Company’s investment policies and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;objectives;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offering;
(d) structure, qualify, register and oversee the distribution of Shares pursuant to the Trust’s distribution reinvestment plan;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve as the TrustCompany’s, OP I’s and the Partnership’s investment and financial advisor and provide research and economic and statistical data in connection with the Assets and the TrustCompany’s investment policies;policies;
(gc) provide the daily management of the Trust Company, OP I and the Partnership and perform and supervise the various administrative functions reasonably necessary for the management and operations of the Trust;Company, OP I and the Partnership;
(hd) maintain and preserve the books and records of the TrustCompany, OP I and the Partnership, including share stock books and records reflecting a record of the Shareholders Stockholders and their ownership of the Trust’s Shares;Shares;
(ie) investigate, select, and, on behalf of the TrustCompany, OP I and the Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name and on behalf of the Trust Company, OP I and the Partnership with any of the foregoing;foregoing;
(jf) consult with the officers and the Board and assist the Board in the formulation and implementation of the TrustCompany’s financial policies policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust Company and in connection with any borrowings proposed to be undertaken by the Trust;Company, OP I and the Partnership;
(kg) review and analyze the operating and capital budgets prepared and submitted by a third party for each property;
(h) subject to the provisions of Sections 2.02(i2.02(j)-(l) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; , (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment investments in Assets will be made; made; (iii) make investments in Assets on behalf of the Trust Company, OP I or the Partnership in compliance with the investment objectives and policies of the Trust; Company; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans;Mortgages;
(li) provide the Board with periodic reports regarding prospective investments in Assets;Assets;
(mj) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;transaction;
(nk) obtain the prior approval of the Board (including a majority of all Independent TrusteesDirectors) for any and all investments in Assets;Assets with a Contract Purchase Price equal to or greater than $15,000,000;
(ol) obtain the prior approval of a majority of the Independent Trustees Directors and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;Affiliates;
(pm) negotiate on behalf of the Trust Company, OP I and the Partnership with banks or lenders for loans to be made to the TrustCompany, negotiate on behalf of the Trust Company, OP I and the Partnership with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust Company or obtain loans for the TrustCompany, OP I and the Partnership, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as a broker-dealer or underwriter; an underwriter; and provided further further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust;Company;
(qn) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust Company, OP I and the Partnership in Assets;Assets;
(ro) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust Company, OP I and the Partnership under this Agreement;Agreement;
(sp) provide the Trust Company, OP I and the Partnership with, or assist the Trust Company, OP I and the Partnership in arranging for, all necessary cash management services;services;
(tq) deliver to or maintain on behalf of the Trust Company, OP I and the Partnership copies of all appraisals obtained in connection with the investments in Assets;Assets;
(ur) upon request of the TrustCompany, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust Company, OP I and the Partnership in making, acquiring requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Trust Company. OP I and the Partnership and handling, prosecuting and settling any claims of the TrustCompany, OP I and the Partnership, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assets;Assets;
(vs) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Shareholders Stockholders and other investors and act on behalf of the Trust Company in connection with investor relations;relations;
(wt) provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;Advisor;
(xu) assist the Trust Company, OP I and the Partnership in preparing all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies; agencies; and
(yv) do all things necessary to assure its ability to render the services described in this Agreement.
Appears in 1 contract
Samples: Advisory Agreement (Carter Validus Mission Critical REIT II, Inc.)
DUTIES OF THE ADVISOR. Subject to Section 2.07the supervision of the Board of Trustees, the Advisor undertakes will be responsible for the day-to-day operations of the Trust and, subject to use Section 17 hereof, shall provide such services and activities relating to the assets, operations and business plan of the Trust as may be appropriate, including:
(a) preparing and submitting an annual budget and business plan for approval by the Board of the Trust (the "Business Plan");
(b) using its commercially reasonable best efforts to present to the Trust potential a continuing and suitable investment program consistent with the investment policies and objectives of the Trust as set forth in the Business Plan;
(c) using its best efforts to present to the Trust investment opportunities consistent with the Business Plan and such investment objectives and policies of program as the Trust as determined and adopted Trustees may adopt from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Trust’s most recent Prospectus for Shares, Declaration of Trust and Bylaws, the Advisor shall, either directly or by engaging a duly qualified and licensed Affiliate of the Advisor or other duly qualified and licensed Person:
(a) manage the formation of the Trust and the Partnership, including the preparation and filing of all necessary documentation and ancillary agreements;
(b) structure, qualify and register the initial Offering;
(c) coordinate marketing and distribution of the Trust’s Shares in connection with the initial Offeringtime;
(d) structure, qualify, register furnishing or obtaining and oversee supervising the distribution performance of Shares pursuant to the ministerial functions in connection with the administration of the day-to-day operations of the Trust’s distribution reinvestment plan, including the investment of reserve funds and surplus cash in short-term money market investments;
(e) structure, qualify and administer the repurchase of Shares pursuant to the Trust’s redemption program;
(f) serve serving as the Trust’s 's investment and financial advisor and provide research and economic providing research, economic, and statistical data in connection with the Assets Trust's investments and investment and financial policies;
(f) on behalf of the Trust’s investment policies, investigating, selecting and conducting relations with borrowers, lenders, mortgagors, brokers, investors, builders, developers and others; provided however, that the Advisor shall not retain on the Trust's behalf any consultants or third party professionals, other than legal counsel, without prior Board approval;
(g) provide consulting with the daily management Trustees and furnishing the Trustees with advice and recommendations with respect to the making, acquiring (by purchase, investment, exchange, or otherwise), holding, and disposition (through sale, exchange, or otherwise) of investments consistent with the Trust and perform and supervise the various administrative functions reasonably necessary for the management and operations Business Plan of the Trust;
(h) maintain and preserve the books and records of the Trust, including share books and records reflecting a record of the Shareholders and their ownership of the Trust’s Shares;
(i) investigate, select, and, on behalf of the Trust, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, asset managers; property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable obtaining for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Trust with any of the foregoing;
(j) consult with the officers and the Board and assist the Board in the formulation and implementation of the Trust’s financial policies and, Trustees such services as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Trust and in connection with any borrowings proposed to be undertaken by the Trust;
(k) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i) locate, analyze and select potential investments in Assets; (ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Trust or the Partnership in compliance with the investment objectives and policies of the Trust; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and (v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Secured Loans;
(l) provide the Board with periodic reports regarding prospective investments in Assets;
(m) if a transaction requires approval by the Board, deliver to the Board all documents required by them to properly evaluate the proposed transaction;
(n) obtain the prior approval of the Board (including a majority of all Independent Trustees) for any and all investments in Assets;
(o) obtain the prior approval of a majority of the Independent Trustees and a majority of the Board not otherwise interested in any transaction with the Advisor or its Affiliates;
(p) negotiate on behalf of the Trust with banks or lenders for loans to be made to the Trust, negotiate on behalf of the Trust with investment banking firms and broker-dealers, and negotiate private sales of Shares and other securities of the Trust or obtain loans for the Trust, as and when appropriate, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided further that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Trust;
(q) obtain reports (which may be prepared by or for the Advisor or its Affiliates), where appropriate, concerning the value of investments or contemplated investments of the Trust required in Assets;
(r) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Trust under this Agreement;
(s) provide the Trust with, or assist the Trust in arranging for, all necessary cash management services;
(t) deliver to or maintain on behalf of the Trust copies of all appraisals obtained in connection with the investments in Assets;
(u) upon request of the Trust, act, or obtain the services of others to act, as attorney-in-fact or agent of the Trust in making, acquiring and disposing of Assetsinvestments, disbursing, disbursing and collecting the fundsfunds of the Trust, paying the debts and fulfilling the obligations of the Trust Trust, and handling, prosecuting prosecuting, and settling any claims of the Trust, including foreclosing and otherwise enforcing mortgage and other liens and security interests comprising any of the Assetssecuring investments;
(vi) supervise obtaining for and at the preparation and filing and distribution expense of returns and reports to governmental agencies and to Shareholders the Trust such services as may be required for property management, loan disbursements, and other investors activities relating to the investments of the Trust, provided, however, the compensation for such services shall be agreed to by the Trust and act on behalf of the service provider;
(j) advising the Trust in connection with investor relationspublic or private sales of shares or other securities of the Trust, or loans to the Trust, but in no event in such a way that the Advisor could be deemed to be acting as a broker dealer or underwriter;
(wk) provide quarterly and at any other time requested by the Trustees, making reports to the Trustees regarding the Trust's performance to date in relation to the Trust's approved Business Plan and its various components, as well as the Advisor's performance of the foregoing services;
(l) making or providing appraisal reports, where appropriate, on investments or contemplated investments of the Trust;
(m) assisting in preparation of reports and other documents necessary to satisfy the reporting and other requirements of any governmental bodies or agencies and to maintain effective communications with shareholders of the Trust; and
(n) doing all things necessary to ensure its ability to render the services contemplated herein, including providing office space, equipment space and office furnishings and personnel as required necessary for the performance of the foregoing services as Advisor;
(x) assist the Trust in preparing , all reports and returns required by the Securities and Exchange Commissionat its own expense, Internal Revenue Service and other state or federal governmental agencies; and
(y) do all things necessary to assure its ability to render the services described in this Agreementexcept as otherwise expressly provided for herein.
Appears in 1 contract
Samples: Advisory Agreement (Continental Mortgage & Equity Trust)
