Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. (b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager: (i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities; (ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees; (iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities; (iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party; (v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs); (vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon; (vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary; (viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers; (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such; (x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses); (xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors; (xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings; (xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; (xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any; (xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan; (xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company; (xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; (xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans; (xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and (xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters). (c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 5 contracts
Samples: Management Agreement (American Capital Strategies LTD), Management Agreement (American Capital Agency Corp), Management Agreement (American Capital Agency Corp)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its the costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager Company and its Affiliates the Advisor incurred on behalf of the CompanyCompany or any subsidiary or in connection with this Agreement, excepting only those expenses that are specifically the responsibility of the Manager Advisor pursuant to Section 7(a) 7.1 of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary subsidiary of the Company shall be paid by the Company and shall not be paid by the Manager Advisor or the Affiliates of the ManagerAdvisor:
(i) all costs 7.2.1 Organization and expenses associated with Offering Expenses; provided, however, that the formation Company shall not reimburse the Advisor to the extent such reimbursement would cause the total amount spent by the Company on Organization and capital raising activities Offering Expenses to exceed 15%, or 11.5% after at least $2,500,000 of Gross Proceeds have been raised, of the Company Gross Proceeds raised as of the date of the reimbursement and its Subsidiaries, if any, including, without limitationprovided further that within 60 days after the end of the month in which an Offering terminates, the costs Advisor shall reimburse the Company to the extent the Company incurred Organization and expenses Offering Expenses exceeding 15%, or 11.5% after at least $2,500,000 of (A) the preparation Gross Proceeds have been raised, of the Company’s registration statements, (B) Gross Proceeds raised in the initial public offering of completed Offering; the Company, (C) Company shall not reimburse the original incorporation Advisor for any Organization and initial organization of Offering Expenses that are not fair and commercially reasonable to the Company, and (D) the Advisor shall reimburse the Company for any subsequent offerings Organization and any filing fees Offering Expenses that are not fair and costs of being a public company, including, without limitation, filings with commercially reasonable to the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesCompany;
(ii) 7.2.2 all costs and expenses in connection with the acquisition, disposition, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiarysubsidiary’s investmentsInvestments (including, without limitation, the Mortgage Assets) and, including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Advisor, to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned by the Company or any subsidiary of the Company;
7.2.3 all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems to the extent such upgrades are required for the Company’s business and operations;
7.2.4 all costs and expenses of money borrowed by the Company or its subsidiaries, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans and other indebtedness of the Company and its subsidiaries (iii) including commitment fees, legal fees, closing and other costs);
7.2.5 all taxes and license fees applicable to the Company or any subsidiary of the Company, including interest and penalties thereon;
7.2.6 all legal, audit, accounting, consultingunderwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and chargesfees, printing, engraving engraving, clerical, personnel and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiarysubsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by 7.2.7 other than for the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingAdvisor Obligations, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers advisors and other agents (other than the Advisor or any Sub-Advisor) engaged by the Company or any Subsidiary subsidiary of the Company or by the Manager Advisor for the account of the Company or any Subsidiarysubsidiary of the Company (other than the Advisor or Sub-Advisor) and all employment expenses of the personnel employed by the Company or any subsidiary of the Company (including, without limitation, a chief financial officer of the Company, but excluding any personnel which are also employed by the Advisor or Sub-Advisor), including, without limitation, the salaries, wages, equity based compensation of such personnel, payroll taxes and the incremental cost for administering employee benefit plans of the Advisor which are used by such personnel;
(viii) 7.2.8 all insurance costs incurred by the Company or any Subsidiarysubsidiary of the Company, including, without limitation, the cost of obtaining and maintaining (A) any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Advisor and officers of the Company, and (3) underwriters of any securities of the Company;
7.2.9 all custodian, transfer agent and registrar fees and charges;
7.2.10 all compensation and fees paid to directors of the Company or any subsidiary of the Company (B) “excluding those directors who are also employees of the Advisor), all expenses of directors of the Company or any subsidiary of the Company (including those directors who are also employees of the Advisor), the cost of directors and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchAdvisor);
(x) 7.2.11 all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiarysubsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) 7.2.12 all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, 7.2.13 any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiarysubsidiary of the Company, or against any trustee, director or officer of the Company or any Subsidiary subsidiary of the Company in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) 7.2.14 all travel and related expenses of directors, officers and employees of the Company and the ManagerAdvisor, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary subsidiary of the Company or performing other business activities that relate to the Company or any Subsidiarysubsidiary of the Company, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment Investments or potential investment other investments of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager Advisor in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) 7.2.15 all expenses of organizing, modifying or dissolving the Company or any Subsidiary subsidiary of the Company and costs preparatory to entering into a business or activity, or costs of winding up or disposing of a business of activity of the Company or its Subsidiaries, if anysubsidiaries;
(xv) 7.2.16 all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiarysubsidiary of the Company, including, without limitation, in connection with any and dividend reinvestment plan;
(xvi) 7.2.17 all expenses of third parties relating to communications to holders of equity securities or debt securities issued by the Company or any subsidiary of the Company and the other bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any subsidiary’s securities and reports to third parties required under any indenture to which the Company or any subsidiary of the Company is a party;
7.2.18 subject to Section 7.1, all expenses relating to any office or office facilities maintained by the Company or any subsidiary of the Company exclusive of the office of the Advisor and/or Affiliates of the Advisor, including, without limitation, rent, telephone, utilities, office furniture, equipment, machinery and other office expenses for any persons or employees the Board of Directors authorizes the Company to hire;
7.2.19 all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, software or hardware or information technology services that is used by solely for the Company;
(xvii) 7.2.20 other than for the Advisor Obligations, all other costs and expenses incurred with respect relating to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all ’s business and investment operations, including, without limitation, the costs and expenses incurred with respect to administering the Company’s incentive plansof acquiring, owning, protecting, maintaining, developing and disposing of Investments, including, without limitation, appraisal, reporting, audit and legal fees;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and 7.2.21 other office, internal and overhead expenses of the Manager and its Affiliates required than for the Company’s operations; providedAdvisor Obligations, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or Advisor, its Affiliates or any Sub-Advisor or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager Advisor of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).; and
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and 7.2.22 all other expenses of the Company and those incurred by the Manager on behalf or any subsidiary of the Company during each month, and shall deliver such written statement to that are not the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt responsibility of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions Advisor under Section 7.1 of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or terminationAgreement.
Appears in 4 contracts
Samples: Advisory Agreement (CM REIT, Inc.), Advisory Agreement (CM REIT, Inc.), Advisory Agreement (CM REIT, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager (or its Affiliates at the Manager’s request, pay directly) for documented out-of-pocket expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses Company or the Acquired Companies’ that are specifically not included as part of the responsibility Management Fee (collectively, the “Expenses”). Expenses include all reasonable costs and expenses which are expressly designated elsewhere in this Agreement as the Company’s, together with the following:
(a) Expenses in connection with the transaction costs incident to the acquisitions, disposition and financing of assets in the ordinary course or any Businesses development activity;
(b) travel and other Expenses incurred by managers, officers, employees and agents of the Manager pursuant to Section 7(ain connection with the Businesses;
(c) Expenses of this Agreement. Without limiting legal, accounting, tax, auditing, administrative and other similar services rendered for the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid Acquired Companies by providers retained by the Company Manager;
(d) Expenses of liability insurance to indemnify the Acquired Companies’ directors and shall not be paid by officers;
(e) Expenses associated with any computer software or hardware that is used solely for the Manager Acquired Companies or to the extent used for the Acquired Companies;
(f) Expenses incurred in contracting with third parties, including Affiliates of the Manager:, for the servicing and special servicing of assets or operations of the Acquired Companies;
(ih) all costs and expenses associated with Expenses relating to the formation and capital raising activities of the Company and its Subsidiaries, if anyBusinesses, including, without limitation, the costs Expenses of acquiring, owning, protecting, maintaining, developing and expenses of (A) the preparation disposing of the Company’s registration statementsAcquired Companies’ assets, (B) the initial public offering of the Companyincluding appraisal, (C) the original incorporation reporting, audit and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iiii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes insurance Expenses incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing operation of the Company’s Acquired Companies and the Businesses except for the costs attributable to the insurance that the Manager elects or any Subsidiary’s equity securities or debt securitiesis required to carry for itself and its employees;
(ivj) all expenses Expenses relating to communications to holders of equity securities any office or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase office facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager maintained for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital Acquired Companies or any of its Affiliates), and all expenses of all directors their respective operations separate from the office or offices of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxk) all other expenses actually Expenses incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are determined by an executive officer of the Manager as reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating Agreement. Without regard to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred amount of compensation received under this Agreement by the Manager, the Manager on behalf shall bear the following expenses (which are included as part of the Company shall be reimbursed monthly Management Fee): (i) wages and salaries of the Manager’s officers and employees; (ii) rent attributable to the space occupied by the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs ; and (iii) all other customary “overhead” expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or terminationManager.
Appears in 4 contracts
Samples: Management and Advisory Agreement, Management and Advisory Agreement (New Media Investment Group Inc.), Management and Advisory Agreement (New Media Investment Group Inc.)
Expenses of the Company. (a) The Except as otherwise set forth in Section 7(b)(iv) hereof with respect to the costs of legal services rendered for the Company by providers retained by the Manager, which costs shall be the expense of the Company, the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company Entities pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company BRG who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. For the avoidance of doubt, any Equity Incentive Plan of BRG or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 7(a).
(b) The Company shall pay (or cause to be paid) all of its the costs and expenses of each Company Entity and shall reimburse the Manager or its Affiliates for documented expenses of the Manager and its Affiliates incurred on behalf of any Company Entity that are reasonably necessary for the performance by the Manager of its duties and functions hereunder, which may include the Company’s pro rata portion of rent, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations, provided, that such expenses are in amounts no greater than those that would be payable to third-party professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis, and excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary Entities shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated Acquisition Expenses incurred in connection with the formation selection and capital raising activities acquisition of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesInvestments;
(ii) all costs general and administrative expenses of the Company Entities;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, dispositiondevelopment, financingredevelopment, hedging construction, repositioning, leasing, disposition and ownership financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(v) the compensation and expenses of BRG’s directors and the cost of liability insurance to indemnify the Company and its directors and officers;
(vi) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of BRG’s securities offerings;
(iiivii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity the securities or debt securities issued by the of any Company or any Subsidiary Entity and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged payable by the Company or to any Subsidiary or transfer agent and registrar in connection with the listing and/or trading of BRG’s securities on any exchange, the fees payable by the Manager for Company to any such exchange in connection with its listing, costs of preparing, printing and mailing BRG’s annual report to its stockholders or the account Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of BRG’s stockholders or the Company or any SubsidiaryOperating Partnership’s partners, as applicable;
(viii) all insurance costs incurred by associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersEntities;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsexpenses incurred by managers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to Manager for travel on the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert behalf and other fees out-of-pocket expenses incurred by managers, officers, personnel and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer agents of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseacquisition, consideration for purchasedevelopment, redevelopment, construction, repositioning, leasing, financing, refinancing, sale or other disposition of an Investment or establishment of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activityBRG’s securities offerings, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment planFinancing Transaction;
(xvix) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(xi) compensation and expenses of BRG’s custodian and transfer agent, howeverif any;
(xii) the costs of maintaining compliance with all federal, that state and local rules and regulations or any other regulatory agency;
(xiii) all taxes and license fees;
(xiv) all insurance costs incurred in connection with the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xv) costs and expenses incurred in contracting with third parties;
(xvi) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xvii) expenses relating to any office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained for any Company Entity or their Investments separate from the office or offices of the Manager;
(xviii) all costs and expenses incurred connected with respect the payments of interest, dividends or distributions in cash or any other form authorized or caused to administering be made by the Company’s incentive plansBoard to or on account of holders of the securities of any Company Entity, including, without limitation, in connection with any dividend reinvestment plan;
(xix) rent any judgment or settlement of pending or threatened proceedings (including disaster recovery facilities costs and expenses)whether civil, telephonecriminal or otherwise) against any Company Entity, utilitiesor against any trustee, office furnituredirector, equipmentpartner, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share member or officer of such expensesCompany Entity in his capacity as such for which any Company Entity is required to indemnify such trustee, as determined director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyany court or governmental agency; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Management Agreement (Bluerock Residential Growth REIT, Inc.), Management Agreement (Bluerock Residential Growth REIT, Inc.), Management Agreement (Bluerock Residential Growth REIT, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only the Underwriting Fee and those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the CompanyCompany and the concurrent private placement, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, investor relations, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan or direct stock purchase plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s equity incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Management Agreement (American Capital Mortgage Investment Corp.), Management Agreement (American Capital, LTD), Management Agreement (American Capital Mortgage Investment Corp.)
Expenses of the Company. (a) The Except as otherwise set forth in Section 7(b)(iv) hereof with respect to the costs of legal tax, accounting, consulting, auditing and other similar services rendered for the Company as specified therein, which costs shall be the expense of the Company, the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company Entities pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company Medalist who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. For the avoidance of doubt, any Equity Incentive Plan of Medalist or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 7(a).
(b) The Company shall pay (or cause to be paid) all of its the costs and expenses of each Company Entity and shall reimburse the Manager or its Affiliates for documented expenses of the Manager and its Affiliates incurred on behalf of any Company Entity that are reasonably necessary for the Companyperformance by the Manager of its duties and functions hereunder, provided, that such expenses are in amounts no greater than those that would be payable to third-party professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis, and excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary Entities shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated Acquisition Expenses incurred in connection with the formation selection and capital raising activities acquisition of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesInvestments;
(ii) all costs general and administrative expenses of the Company Entities, if any;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, dispositiondevelopment, financingredevelopment, hedging construction, repositioning, leasing, disposition and ownership financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis. For the avoidance of doubt, (a) any Equity Incentive Plan of Medalist or the Operating Partnership in which any person referred to in Section 7(a) above participates, and (b) all salaries, bonuses and other wages, payroll taxes and the cost of employee benefit plans of any persons referred to in Section 7(a) above, and costs of insurance with respect to any such person, shall be included in the operation of this Section 7(b)(iv);
(v) the compensation and expenses of Medalist’s directors and the cost of liability insurance to indemnify the Company and its directors and officers;
(vi) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of Medalist’s securities offerings;
(iiivii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity the securities or debt securities issued by the of any Company or any Subsidiary Entity and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged payable by the Company or to any Subsidiary or transfer agent and registrar in connection with the listing and/or trading of Medalist’s securities on any exchange, the fees payable by the Manager for Company to any such exchange in connection with its listing, costs of preparing, printing and mailing Medalist’s annual report to its stockholders or the account Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of Medalist’s stockholders or the Company or any SubsidiaryOperating Partnership’s partners, as applicable;
(viii) all insurance costs incurred by associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersEntities;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsexpenses incurred by managers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to Manager for travel on the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert behalf and other fees out-of-pocket expenses incurred by managers, officers, personnel and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer agents of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseacquisition, consideration for purchasedevelopment, redevelopment, construction, repositioning, leasing, financing, refinancing, sale or other disposition of an Investment or establishment of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activityMedalist’s securities offerings, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment planFinancing Transaction;
(xvix) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(xi) compensation and expenses of Medalist’s custodian and transfer agent, howeverif any;
(xii) the costs of maintaining compliance with all federal, that state and local rules and regulations or any other regulatory agency;
(xiii) all taxes and license fees;
(xiv) all insurance costs incurred in connection with the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xv) costs and expenses incurred in contracting with third parties;
(xvi) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xvii) expenses relating to any office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained for any Company Entity or their Investments separate from the office or offices of the Manager, if any;
(xviii) all costs and expenses incurred connected with respect the payments of interest, dividends or distributions in cash or any other form authorized or caused to administering be made by the Company’s incentive plansBoard to or on account of holders of the securities of any Company Entity, including, without limitation, in connection with any dividend reinvestment plan;
(xix) rent any judgment or settlement of pending or threatened proceedings (including disaster recovery facilities costs and expenses)whether civil, telephonecriminal or otherwise) against any Company Entity, utilitiesor against any trustee, office furnituredirector, equipmentpartner, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share member or officer of such expensesCompany Entity in his capacity as such for which any Company Entity is required to indemnify such trustee, as determined director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyany court or governmental agency; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Management Agreement (Medalist Diversified REIT, Inc.), Management Agreement (Medalist Diversified REIT, Inc.), Management Agreement (Medalist Diversified REIT, Inc.)
Expenses of the Company. (a) The Subject to Section 7(b), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement otherwise (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, officers or employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel (“Manager Expenses”).
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for documented costs and expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the other than Manager pursuant to Section 7(a) of this AgreementExpenses. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the acquisition, dispositionnegotiation, financingstructuring, trading, settling, disposition and financing of the investments of the Company and its Subsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees costs, and expenses of legal, tax, accounting, consulting, auditing, finance, administrative, investment banking, capital market and other similar services rendered to the Company (including, where the context requires, through one or more third parties and/or Affiliates of the Manager) or, if provided by the Manager’s personnel, in accordance with Section 2(e) hereof;
(iii) the compensation and expenses of the Company’s or any Subsidiarydirectors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the Company’s investmentsdirectors and officers;
(iv) interest and fees and expenses arising out of borrowings made by the Company, including, without limitationbut not limited to, costs associated with the establishment and expenses incurred in contracting with third parties to provide such servicesmaintenance of any of the Company’s credit facilities, such as legal other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders and any other reports or related statements;
(vi) the Company’s allocable share of costs associated with technology-related expenses, including without limitation, any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Manager that is used solely for the Company, technology service providers and related software/hardware utilized in connection with the Company’s investment and operational activities;
(vii) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of an investment or the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) the Company’s allocable share of costs and expenses incurred with respect to market information systems and publications, research publications and materials, including, without limitation, news research and quotation equipment and services;
(ix) the costs and expenses relating to ongoing regulatory compliance matters and regulatory reporting obligations relating to the Company’s activities;
(x) the costs of any litigation involving the Company or its assets and the amount of any judgments or settlements paid in connection therewith, directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the affairs of the Company;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) the Company’s allocable share of costs and expenses incurred in contracting with third parties, in whole or any Subsidiaryin part, on the Company’s behalf;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specifically excluded herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and The Manager may, at its option, elect not to seek reimbursement for certain expenses incurred by the Manager on behalf during a given quarterly period, which determination shall not be deemed to construe a waiver of the Company shall be reimbursed monthly to the Manager. reimbursement for similar expenses in future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company and those incurred during each fiscal quarter to be reimbursed by the Manager on behalf of the Company during each monthCompany, and shall use commercially reasonable efforts to deliver such written statement the same to the Company within thirty forty-five (3045) days after following the end of each month. The Company shall pay all amounts payable the applicable fiscal quarter (subject to the Manager pursuant to this Section 7(c) within five (5) Business Days after reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the written Company within ten (10) days following delivery of the expense statement without demandby the Manager; provided, deduction, that such payments may be offset or delayby the Manager against amounts due to the Company from the Manager. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. .
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Management Agreement (Capital Trust Inc), Management Agreement (Capital Trust Inc), Management Agreement (Capital Trust Inc)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for documented expenses of the Manager and its Affiliates incurred on its behalf of (collectively, the Company, “Expenses”) excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreementas set forth herein. Without limiting the generality of the foregoing, it is specifically agreed that the following Expenses include all costs and expenses of which are expressly designated elsewhere in this Agreement as the Company or any Subsidiary shall be paid by Company’s, together with the Company and shall not be paid by the Manager or Affiliates of the Managerfollowing:
(i) all costs Operating Expenses and expenses associated with the formation Organization and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesOffering Expenses;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the acquisition, dispositiondisposition and financing of Asset-Backed Finance Assets;
(iii) costs of legal, financingtax, hedging accounting, third party administrators for the establishment and ownership maintenance of the books and records, consulting, auditing, administrative and other similar services rendered for the Company, the Series and the Subsidiaries by providers retained by the Manager;
(iv) the compensation and expenses of the Company’s directors and the allocable share of cost of liability insurance under a universal insurance policy covering the Manager, its Affiliates and/or the Company to indemnify the Company’s directors and officers and in connection with obtaining and maintaining the insurance coverage referred to in Section 7(e) of this Agreement;
(v) costs associated with the establishment and maintenance of any of the Company’s credit facilities, repurchase agreements, and securitization vehicles or other indebtedness of the Company or a Series (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty feessecurities offerings;
(iiivi) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuanceapplication for, distributionand participation in, transfer, registration and stock exchange listing programs established by the U.S. government;
(vii) expenses connected with communications to holders of the Company’s ’s, the Series’ or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (agencies, including, without limitation, the SEC), including any all costs of preparing and filing required reports with the U.S. Securities and Exchange Commission, and the costs of preparing, printing and mailing the Company’s annual report to its Shareholders and proxy materials, if any, with respect to any meeting of the Company’s Shareholders;
(viii) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company and the Subsidiaries;
(ix) expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Manager in connection with this functionthe purchase, financing, refinancing, sale or other disposition of an Asset or establishment and maintenance of any of the cost of printing Company’s credit facilities, repurchase agreements, securitization vehicles and mailing certificates for such securities and proxy solicitation materials and reports to holders borrowings under programs established by the U.S. government or any of the Company’s or any of the Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a partyofferings;
(vx) all costs and expenses incurred with respect to market information systems and publications, pricing and valuation services, research publications, and materials and settlement, clearing and custodial fees and expenses;
(xi) compensation and expenses of money borrowed by the Company or its SubsidiariesCompany’s custodian and escrow and transfer agent, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vixii) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xiii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixiv) all insurance costs incurred by in connection with the Company or any Subsidiaryoperation of the Company’s, the Series’ and the Subsidiaries’ business;
(xv) costs and expenses incurred in contracting with third parties, including Affiliates of the Manager, for the servicing and special servicing of the assets of the Company, the Series and the Subsidiaries;
(xvi) all other costs and expenses relating to the business operations of the Company, the Series and the Subsidiaries, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of Asset-Backed Finance Assets, including appraisal, reporting, audit and legal fees;
(Axvii) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of facilities, maintained for the Company, the Series and (3) underwriters of any securities the Subsidiaries or Asset-Backed Assets separate from the office or offices of the CompanyManager;
(xviii) expenses connected with the payments of interest, (B) “errors and omissions” insurance coverage, and (C) dividends or distributions in cash or any other insurance deemed necessary form authorized or advisable caused to be made by the Board of Directors for the benefit to or on account of holders of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of Company’s, the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s Series’ or any Subsidiary’s operations (securities, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixix) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) ), including any costs or expenses in connection therewith, against the Company Company, a Series or any Subsidiary, or against any trustee, director or officer of the Company Company, a Series or of any Subsidiary in his capacity as such for which the Company Company, a Series or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvixx) all costs and expenses related relating to (A) the design development and maintenance management of the Company’s web site website; and
(xxi) all other expenses actually incurred by the Manager (except as described below) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement. The Company shall have no obligation to reimburse the Manager or sites its Affiliates for the salaries and other compensation of the Manager’s asset-backed instrument professionals who provide services to the Company, the Series or the Subsidiaries under this Agreement except that, the Company shall reimburse the Manager or its Affiliates, as applicable, for the Company’s allocable share of the compensation, including without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, paid to (1) the Manager’s personnel serving as the Company’s chief financial officer based on the percentage of his or her time spent managing the Company’s affairs and (B2) other legal and compliance, finance, accounting, operations, investor relations, tax, valuation, internal audit and other non-investment personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company’s, the Series’ and the Subsidiaries’ affairs. The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s, the Series’ and the Subsidiaries’ affairs. The Manager shall provide the Company with such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs. In addition, the Company, at the option of the Manager, shall be required to pay the Company’s pro rata share portion of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses)rent, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses attributable to the personnel of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operations of the Company; and
(xx) all other , the Series and the Subsidiaries. These expenses actually incurred shall be allocated to the Company based upon the percentage of time devoted by such personnel of the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental ’s, the Series’ and regulatory matters).
(c) Costs its Subsidiaries’ affairs as calculated at each fiscal quarter end. The Manager and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly may modify this allocation methodology, subject to the ManagerIndependent Directors’ approval. The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods. The Manager shall prepare a written statement allocate such Expenses among each Series in reasonable detail documenting proportion to the size of the investment made by each in the activity or entity to which such Expenses relate, to the extent applicable, or in such other manner as the Manager in good faith determines is fair and reasonable. Each Series shall bear the fees, costs and or expenses of the Company certain services provided by, and those incurred allocable overhead of, Apollo as well as industry executives, advisors, consultants and operating executives contracted or engaged directly or indirectly by such Series, the Manager on behalf or any Affiliated Service Provider. Certain industry executives, advisors, consultants and operating executives may be employees of the Company during each monthApollo, and shall deliver may be exclusive or non-exclusive independent contractors with respect to services provided to Apollo or such written statement to the Company within thirty (30) days after the end of Series; however, in each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demandcase, deduction, offset or delay. Cost their compensation and expense reimbursement to the Manager allocable expenses shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Companyborne by such Series. The provisions of this Section 7 9 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Operating Agreement (Apollo Asset Backed Credit Co LLC), Operating Agreement (Apollo Asset Backed Credit Co LLC), Operating Agreement (Apollo Asset Backed Credit Co LLC)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates paid or incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7 or otherwise excluded pursuant to Section 7(g). Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid or reimbursed by the Company and shall not be paid borne by the Manager or Affiliates of the Manager:
(i) all costs and ongoing organizational costs, including but not limited to, expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the origination, acquisition, disposition and financing of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation investments of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, financial, tax, accounting, servicing, due diligence, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors, the cost of liability insurance to indemnify the Company’s directors and officers, directors and officers/errors and omissions liability insurance, and any other insurance premium;
(iv) costs associated with the establishment and maintenance of any financing arrangements or any Subsidiary’s investmentsother indebtedness of the Company (including interest and other costs for borrowed money, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with similar costs) or the issuance, distributionoffering, transfer, registration and stock exchange distribution or listing of any of the Company’s or securities (including selling commissions and fees, advertising expenses and any Subsidiary’s equity securities or debt securitieslisting and registration fees);
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing reports required by governmental entities, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company or its Subsidiariesto any such securities exchange in connection with any such listing, costs of preparing, printing and mailing any reports of the Company to the Company’s stockholders and proxy materials, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of respect to any credit facilities, warehouse loans, repurchase facilities and other indebtedness meeting of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)Company’s stockholders;
(vi) all taxes and license fees applicable to costs associated with any computer software or hardware, electronic equipment or purchased information technology service from a third-party vendor that is used for the Company or any Subsidiary, including interest and penalties thereonCompany;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company’s behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Companysecurities offerings;
(xviiviii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such ;
(ix) compensation and expenses were not incurred solely for the benefit of the Company’s custodian and transfer agent, if any;
(xviiix) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all federal, state and local taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with respect third parties;
(xiv) all other costs and expenses relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of selecting, evaluating, originating, acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xixxv) rent expenses (including disaster recovery facilities costs and expenses)the Company’s pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the operation of the Company’s operations; providedprovided that, howevernotwithstanding anything to the contrary herein, that the Company shall only not be responsible obligated to reimburse the Manager or its Affiliates for a proportionate share any rent paid for the use of such expenses, as determined any offices or office facilities owned by the Manager Principals, including any such offices or office facilities located at 000 Xxxx Xxxxxx Xxxxxx, Greenwich, Connecticut 06830 or 00 Xxxxxx Xxxx Xxxx, Xxxxxxxxxxxxx, XX 00000.
(xvi) expenses connected with the payments of interest, dividends or distributions in good faithcash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s securities, where including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, or against any director or officer of the Company in his capacity as such for which the Company is required to indemnify such director or officer by any court or governmental agency;
(xviii) expenses were not incurred solely for connected with calculating the benefit Company’s Core Earnings, Equity and/or net asset value (including the cost and expenses of any independent valuation firm);
(xix) expenses of organizing, redomesticating, merging, liquidating or dissolving the Company, selling equity interest in the Company, or amending the Governing Instruments of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(b) The Company shall have no obligation to pay, or reimburse the Manager or its Affiliates for, the salaries and other compensation of the Manager’s investment professionals who provide services to the Company under this Agreement, except that the Company shall pay, or reimburse the Manager or its Affiliates, as applicable, for, the Company’s fair and equitable allocable share of the compensation, including annual base salary, bonus, any related withholding taxes and employee benefits, paid to (i) subject to review by the Compensation Committee of the Board, the Manager’s personnel serving as Chief Executive Officer (except when the Chief Executive Officer serves as a member of the Investment Committee prior to the consummation of an Internalization Transaction), General Counsel, Chief Compliance Officer, Chief Financial Officer, Chief Marketing Officer, Managing Director and any other officer of the Company based on the percentage of his or her time spent devoted to the Company’s affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company’s affairs, with the allocable share of the compensation of such personnel described in this clause (ii) being as reasonably determined by the Manager to appropriately reflect the amount of time spent devoted by such personnel to the Company’s affairs. For the avoidance of doubt, the service by any personnel of the Manager and its Affiliates as a member of the Investment Committee will not, by itself, dispositive in the determination as to whether such personnel is deemed “investment personnel” of the Manager and its Affiliates. The Manager shall provide the Company with such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs. It being understood that, for the avoidance of doubt, the limitation contained in this Section 7(b) shall not apply to any equity-based incentive compensation payable or granted by the Company, including, without limitation, any fees or expenses relating such equity-based incentive compensation made pursuant to the Company’s compliance with all governmental and regulatory matters)Plan.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(d) Costs and expenses paid or incurred by the Manager on behalf of the Company shall be reimbursed monthly to the ManagerManager and shall be made regardless of whether any cash distributions are made to the Company’s stockholders. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Subject to review by the Compensation Committee of the Board pursuant to Section 7(b)(i), the Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(e) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to unsatisfactory performance by the Manager that is materially detrimental to the Company taken as a whole.
(f) Should the Board request that the Manager, any Affiliate of the Manager or any director, officer or employee thereof render services for the Company other than as set forth in Section 2 hereof, such additional services, if the Manager elects to perform them, shall be separately compensated at such rates and in such amounts as shall be agreed upon by the Manager and the Board, subject to the limitations contained in the Company’s Governing Instruments; provided that such separate compensation shall not exceed an amount that would be payable to non-Affiliated third parties for similar services pursuant to an agreement negotiated on an arm’s-length basis, and shall not be deemed to be services pursuant to the terms of this Agreement.
(g) Notwithstanding anything to the contrary herein, the Company shall not be responsible for the reimbursement or payment of the Company’s costs and expenses pertaining to its formation and its initial offering of equity (collectively, the “Start-Up Expenses”), of which the Manager did not have a role, except that the Company shall pay, or reimburse the Principals for, the Start-Up Expenses paid or payable to third-party lawyers, accountants and valuation consultants. It being understood that any Start-Up Expenses not borne by the Company are intended to borne by the Principals.
Appears in 2 contracts
Samples: Management Agreement (AFC Gamma, Inc.), Management Agreement (AFC Gamma, Inc.)
Expenses of the Company. (a) The Except as provided in Section 7(b)(xx), the Manager shall be responsible for (i) the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Overhead Sharing Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Bimini or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel and (ii) all other costs and expenses payable by the Manager under the Overhead Sharing Agreement and (iii) all costs and expenses incurred by the Company in connection with the Initial Offering.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement or of Bimini pursuant to the Overhead Sharing Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s 's private placement memoranda and registration statements, (B) the initial all private and public offering offerings of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities; provided, however, that, for all costs and expenses paid by the Manager in connection with the Initial Offering, the Company is not obligated to reimburse the Manager any of these expenses;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s 's or any Subsidiary’s 's investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s 's or any Subsidiary’s 's equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s 's or any Subsidiary’s 's securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital the Manager or any of its Affiliates), and and, subject to clause (xiii) below, all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s 's or any Subsidiary’s 's operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s 's web site or sites and (B) the Company’s 's pro rata share share, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s 's incentive and benefit plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s 's operations; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company; and
(xx) the Company’s allocable share of the compensation of its Chief Financial Officer, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month).
(xxi) all other expenses (other than those described in Section 7(a) above) actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s 's compliance with all governmental and regulatory matters). For the avoidance of doubt, payment for all services provided to the Company by AVM, L.P. (including repurchase agreement trading, clearing and administrative services) shall be made by the Company directly to AVM, L.P.
(c) Notwithstanding Section 7(b), the costs and expenses paid by the Manager or its Affiliates on behalf of the Company described in this Section 7(c) below shall not become reimbursable costs and expenses until the first calendar quarter immediately following the calendar quarter in which the Company’s ending Equity balance first equals or exceeds $100,000,000.00. Until such time, the Manager shall pay all of the following costs and expenses while the Company shall continue to be responsible for paying all other expenses set forth in Section 7(b):
(i) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), of any computer software, hardware or information technology services that is used by the Company;
(ii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall be responsible for its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), where such expenses were not incurred solely for the benefit of the Company;
(iii) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall be responsible for its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), where such expenses were not incurred solely for the benefit of the Company; and
(iv) the Company’s allocable share of the compensation of its Chief Financial Officer, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, based on the percentage of time spent on the Company’s affairs.
(cd) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Management Agreement (Orchid Island Capital, Inc.), Management Agreement (Bimini Capital Management, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for Expenses Borne by the expenses related to any and all personnel of the Manager and its Affiliates who provide services Manager. Without regard to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of compensation received hereunder by the Manager, American Capital or any the Manager shall bear the following expenses:
(i) Employment expenses of their Affiliates)the personnel employed by the Manager, including, without limitationbut not limited to, salaries, bonus and other wages, payroll taxes taxes, and the cost of employee benefit plans plans;
(ii) Rent, telephone, utilities, office furniture, equipment and machinery (including computers, to the extent utilized) and other office expenses (such as asset/liability software, modeling software and other software and hardware) of such personnelthe Manager needed in order to perform its duties as set forth herein;
(iii) Bookkeeping fees and expenses including any costs of computer services, other than in connection with communications to security holders of the Company;
(iv) Miscellaneous administrative expenses incurred in supervising and monitoring the Company’s investments or any subsidiary’s investments or relating to performance by the Manager of its functions hereunder;
(v) Fees and expenses paid to advisors and independent contractors, consultants, managers, and costs other agents engaged by the Manager for the account of insurance the Company or any subsidiary of the Company;
(vi) Expenses connected with respect the acquisition of the Company’s assets and mortgage loans;
(vii) Expenses related to such personnelthe servicing and subservicing of mortgage loans; and
(viii) Travel and related expenses of personnel of the Manager when attending meetings or performing other business activities which relate to the Company or any subsidiary of the Company.
(b) Expenses Borne by the Company. The Company or any subsidiary of the Company shall pay all of its costs and expenses and shall reimburse except those which are the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the specific responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without ; and, without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by subsidiary of the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities The cost of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesborrowed money;
(ii) all costs All taxes applicable to the Company or any subsidiary of the Company including interest and penalties thereon;
(iii) Legal, accounting and auditing fees and expenses in connection relating to the Company’s or any subsidiary’s operations;
(iv) Expenses relating to any office or office facilities maintained by the Company or any subsidiary of the Company exclusive of the office of the Manager;
(v) Expenses connected with the acquisition, disposition, financing, hedging ownership and ownership disposition of the Company’s or any Subsidiarysubsidiary’s investmentsassets, including, without limitationbut not limited to, costs of foreclosure, maintenance, repair and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, improvement of property and premiums for insurance premiums, commitment fees, brokerage fees and guaranty feeson property owned by the Company or any subsidiary of the Company;
(iiivi) all legalLegal, audit, accounting, consultingunderwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and chargesfees, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiarysubsidiary’s equity securities or debt securities;
(ivvii) all The expenses relating of organizing, modifying or dissolving the Company or any subsidiary of the Company;
(viii) All insurance costs incurred in connection with the Company or any subsidiary of the Company;
(ix) Expenses connected with payments of dividends or interest or distributions in any other form made or caused to be made by the Board of Directors to holders of the securities of the Company or any subsidiary of the Company;
(x) Expenses connected with the structuring of the issuance of mortgage securities by the Company or any subsidiary of the Company, including but not limited to trustee’s fees, insurance premiums, and costs of required credit enhancements;
(xi) Travel and related expenses of the directors of the Company when attending meetings or performing other business activities which relate to the Company;
(xii) All expenses of third parties connected with communications to holders of equity securities or debt securities issued by of the Company or any Subsidiary subsidiary of the Company and the other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC)agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiarysubsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary subsidiary of the Company is a party;
(vxiii) all costs Transfer agent’s and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest registrar’s fees and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)charges;
(vixiv) all taxes Fees and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees expenses paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company trustees or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary subsidiary of the Company, the cost of director and officer liability insurance and premiums for fidelity and errors and omissions insurance;
(excluding those directors who are also directors, officers, employees or agents of American Capital xv) Any judgment rendered against the Company or any subsidiary of its Affiliates)the Company, and all expenses of all directors or against any trustee or director of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer subsidiary of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trusteetrustee or director, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;; and
(xiiixvi) all travel and related Other miscellaneous expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity subsidiary of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were which are not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead specified expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Management Agreement (Specialty Trust Inc), Management Agreement (Specialty Trust Inc)
Expenses of the Company. (a) The Manager Except as otherwise set forth in Section 7(b)(iv) hereof with respect to the costs of legal tax, accounting, consulting, auditing and other similar services rendered for the Company as specified therein, which costs shall be the expense of the Company, the Advisor shall be responsible for the expenses related to any and all personnel of the Manager Advisor and its Affiliates who provide services to the Company Entities pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company CapRocq who are also directors, officers, employees or agents of the Manager, American Capital Advisor or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. For the avoidance of doubt, any Equity Incentive Plan of CapRocq or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 7(a).
(b) The Company shall pay (or cause to be paid) all of its the costs and expenses of each Company Entity and shall reimburse the Manager Advisor or its Affiliates for documented expenses of the Manager Advisor and its Affiliates incurred on behalf of any Company Entity that are reasonably necessary for the Companyperformance by the Advisor of its duties and functions hereunder, provided, that such expenses are in amounts no greater than those that would be payable to third-party professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis, and excepting only those expenses that are specifically the responsibility of the Manager Advisor pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary Entities shall be paid by the Company and shall not be paid by the Manager Advisor or Affiliates of the ManagerAdvisor:
(i) all costs and expenses associated Acquisition Expenses incurred in connection with the formation selection and capital raising activities acquisition of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesInvestments;
(ii) all costs general and administrative expenses of the Company Entities, if any;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, dispositiondevelopment, financingredevelopment, hedging construction, repositioning, leasing, disposition and ownership financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Advisor or, if provided by the Advisor’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis. For the avoidance of doubt, (a) any Equity Incentive Plan of CapRocq or the Operating Partnership in which any person referred to in Section 7(a) above participates, and (b) all salaries, bonuses and other wages, payroll taxes and the cost of employee benefit plans of any persons referred to in Section 7(a) above, and costs of insurance with respect to any such person, shall be included in the operation of this Section 7(b)(iv);
(v) the compensation and expenses of CapRocq’s directors and the cost of liability insurance to indemnify the Company and its directors and officers;
(vi) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of CapRocq’s securities offerings;
(iiivii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity the securities or debt securities issued by the of any Company or any Subsidiary Entity and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged payable by the Company or to any Subsidiary or transfer agent and registrar in connection with the listing and/or trading of CapRocq’s securities on any exchange, the fees payable by the Manager for Company to any such exchange in connection with its listing, costs of preparing, printing and mailing CapRocq’s annual report to its stockholders or the account Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of CapRocq’s stockholders or the Company or any SubsidiaryOperating Partnership’s partners, as applicable;
(viii) all insurance costs incurred by associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersEntities;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsexpenses incurred by managers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to Advisor for travel on the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert behalf and other fees out-of-pocket expenses incurred by managers, officers, personnel and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer agents of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Advisor in connection with the purchaseacquisition, consideration for purchasedevelopment, redevelopment, construction, repositioning, leasing, financing, refinancing, sale or other disposition of an Investment or establishment of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activityCapRocq’s securities offerings, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment planFinancing Transaction;
(xvix) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(xi) compensation and expenses of CapRocq’s custodian and transfer agent, howeverif any;
(xii) the costs of maintaining compliance with all federal, that state and local rules and regulations or any other regulatory agency;
(xiii) all taxes and license fees;
(xiv) all insurance costs incurred in connection with the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business except for the costs attributable to the insurance that the Advisor elects to carry for itself and its personnel;
(xv) costs and expenses incurred in contracting with third parties;
(xvi) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xvii) expenses relating to any office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained for any Company Entity or their Investments separate from the office or offices of the Advisor, if any;
(xviii) all costs and expenses incurred connected with respect the payments of interest, dividends or distributions in cash or any other form authorized or caused to administering be made by the Company’s incentive plansBoard to or on account of holders of the securities of any Company Entity, including, without limitation, in connection with any dividend reinvestment plan;
(xix) rent any judgment or settlement of pending or threatened proceedings (including disaster recovery facilities costs and expenses)whether civil, telephonecriminal or otherwise) against any Company Entity, utilitiesor against any trustee, office furnituredirector, equipmentpartner, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share member or officer of such expensesCompany Entity in his capacity as such for which any Company Entity is required to indemnify such trustee, as determined director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyany court or governmental agency; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which Advisor (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager Advisor of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager Advisor on behalf of the Company shall be reimbursed monthly to the ManagerAdvisor. The Manager Advisor shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager Advisor on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager Advisor pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager Advisor shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Advisory Agreement (CapRocq Core REIT, Inc.), Advisory Agreement (CapRocq Core REIT, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only the Underwriting Fee and those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the origination, acquisition, disposition and financing of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation investments of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, financial, tax, accounting, servicing, due diligence, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors, the cost of liability insurance to indemnify the Company’s directors and officers and the Company’s allocable portion of the fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premium;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders, partners or its Subsidiaries, if any, including, without limitation, principal, interest members and the costs associated proxy materials with the establishment and maintenance of respect to any credit facilities, warehouse loans, repurchase facilities and other indebtedness meeting of the Company and its SubsidiariesCompany’s stockholders, if any (including commitment fees, legal fees, closing and other costs)partners or members;
(vi) all taxes and license fees applicable to costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including interest and penalties thereonCompany;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company’s behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design establishment and maintenance of any of the Company’s web site securitizations or sites and (B) any of the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Companysecurities offerings;
(xviiviii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such ;
(ix) compensation and expenses were not incurred solely for the benefit of the Company’s custodian and transfer agent, if any;
(xviiix) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all federal, state and local taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with respect third parties;
(xiv) all other costs and expenses relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of originating, acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xixxv) rent expenses (including disaster recovery facilities costs and expenses)the Company’s pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company;
(xvi) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s securities, including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, or against any trustee, director, partner, member or officer of the Company in his capacity as such for which the Company is required to indemnify such trustee, director, partner, member or officer by any court or governmental agency;
(xviii) expenses connected with calculating Core Earnings (including the cost and expenses of any independent valuation firm); and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(includingb) The Company shall have no obligation to reimburse the Manager or its Affiliates for the salaries and other compensation of the Manager’s investment professionals who provide services to the Company under this Agreement, without limitationexcept that the Company shall reimburse the Manager or its Affiliates, as applicable, for the Company’s allocable share of the compensation, including annual base salary, bonus, any fees related withholding taxes and employee benefits, paid to (i) the Manager’s personnel serving as the Company’s chief financial officer based on the percentage of his or expenses relating her time spent managing the Company’s affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company’s affairs. The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s compliance affairs. The Manager shall provide the Company with all governmental and regulatory matters)such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(d) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, deduction offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(e) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
Appears in 2 contracts
Samples: Management Agreement (Ares Commercial Real Estate Corp), Management Agreement (Ares Commercial Real Estate Corp)
Expenses of the Company. (a) The Manager Company shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Investment Advisory Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of providing employee benefit plans of benefits to such personnel, and costs of insurance with respect to such personnel. The Manager shall not be responsible for any expenses related to the Chief Financial Officer and General Counsel of the Company, for so long as such employees of the Manager are seconded to the Company.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this AgreementCompany and its Subsidiaries. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) costs and expenses incurred with respect to investor relation services, industry associations, memberships and conferences, market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses applicable to the Company;
(ix) compensation and expenses of the Company’s custodian and transfer agent, if any;
(x) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company or any Subsidiaryoperation of the Company’s business except for the costs attributable to “errors and omissions” insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specified herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c8(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(d) If so requested by the Manager within the ninety (90) day period following the date of this Agreement, the Company shall pre-fund to the Manager up to $5 million in the aggregate for costs and expenses (the “Pre-Funded Expenses”). The Pre-Funded Expenses shall be credited on a monthly basis against up to fifty percent (50%) of the costs and expenses incurred by the Manager on behalf of the Company during the relevant period and payable by the Company hereunder until such time as the full amount of Pre-Funded Expenses shall have been so credited.
Appears in 2 contracts
Samples: Management Agreement (Starwood Waypoint Residential Trust), Management Agreement (Starwood Waypoint Residential Trust)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the diligencing, underwriting, acquisition, dispositionnegotiation, financingstructuring, origination, trading, settling, operation, servicing, disposition and financing of the assets and investments of the Company (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees, costs and expenses of legal, financial, tax, accounting, underwriting, originating, servicing, due diligence, consulting, auditing (including internal audit), operational and administrative, investment banking, capital markets and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses of the Company’s or any Subsidiarydirectors and the cost of liability insurance to indemnify the Company’s investmentsdirectors and officers;
(iv) interest and fees and expenses arising out of borrowings made by the Company, including, without limitationbut not limited to, costs associated with the establishment and expenses incurred in contracting with third parties to provide such servicesmaintenance of any of the Company’s credit facilities, such as legal other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders, partners or its Subsidiaries, if any, including, without limitation, principal, interest members and the costs associated proxy materials with the establishment and maintenance of respect to any credit facilities, warehouse loans, repurchase facilities and other indebtedness meeting of the Company Company’s stockholders, partners or members and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)reports or related statements;
(vi) all taxes and license fees applicable to the Company or any Subsidiarycosts associated with technology related expenses, including interest any computer software or hardware, electronic equipment or purchased information technology services from third party vendors or Affiliates of the Manager, technology service providers and penalties thereonrelated software/hardware utilized in connection with the Company’s investment and operational activities;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company’s behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design establishment and maintenance of any of the Company’s web site securitizations or sites and (B) any of the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Companysecurities offerings;
(xviiviii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(ix) the costs of maintaining compliance with all federal, howeverstate and local rules and regulations or any other regulatory agency;
(x) all federal, that state and local taxes and license fees;
(xi) all insurance costs incurred by or on behalf of the Company shall only be responsible for a proportionate share of such expenses, as determined by in connection with the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business, except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel such as coverage for employers’ liability, fidelity or errors and omissions insurance;
(xviiixii) all other costs and expenses incurred with respect relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of originating, acquiring, owning, protecting, servicing, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xixxiii) rent expenses (including disaster recovery facilities costs and expenses)the Company’s portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, calculated in accordance with the Company’s actual usage of such facilities, equipment or services, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the operation of the Company;
(xiv) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s operations; providedsecurities, however, that including in connection with any dividend reinvestment plan;
(xv) the costs of any litigation involving the Company shall only be responsible for a proportionate share or its assets and the amount of such expensesany judgment or settlement of pending or threatened proceedings (whether civil, as determined by criminal or otherwise) against the Manager Company, or against any trustee, director, partner, member or officer of the Company in good faithhis or her capacity paid in connection therewith, where such expenses were not incurred solely for directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the benefit affairs of the Company; and
(xxxvi) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(includingb) The Manager shall be responsible and the Company shall have no obligation to reimburse the Manager or its Affiliates for the salaries, without limitationbonuses, employee benefits, perquisites, taxes and expenses associated with the Manager’s personnel who provide investment advice and investment services to the Company under this Agreement. The Company shall reimburse the Manager or its Affiliates, as applicable, for the Company’s allocable share of the compensation, including annual base salary, bonus and any fees related withholding taxes and employee benefits, paid to (i) the Manager’s personnel serving as the Company’s chief financial officer and general counsel, based on the percentage of their time spent managing the Company’s affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or expenses relating a portion of their time managing the Company’s affairs. The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s compliance affairs. The Manager shall provide the Company with all governmental and regulatory matters)such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs.
(c) In addition, the Manager shall be responsible and the Company shall have no obligation to reimburse the Manager or its Affiliates for costs and expenses incurred by the Manager in connection with Company’s initial public offering of its common stock and the formation transaction contemplated by the Contribution Agreement, dated the date hereof, among and the Company, Two Harbors Operating Company LLC and Two Harbors’ Investment Corp.
(d) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(e) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall use commercially reasonable efforts to deliver such written statement to the Company within thirty (30) days after the end of each monthmonth (subject to reasonable delays resulting from delays in the receipt of information). The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(f) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
Appears in 1 contract
Samples: Management Agreement (Granite Point Mortgage Trust Inc.)
Expenses of the Company. (a) The Except as otherwise set forth in Section 7(b)(iv) hereof with respect to the costs of legal tax, accounting, consulting, auditing and other similar services rendered for the Company as specified therein, which costs shall be the expense of the Company, the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company Entities pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company HCGR who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. For the avoidance of doubt, any Equity Incentive Plan of HCGR or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 7(a).
(b) The Company shall pay (or cause to be paid) all of its the costs and expenses of each Company Entity and shall reimburse the Manager or its Affiliates for documented expenses of the Manager and its Affiliates incurred on behalf of any Company Entity that are reasonably necessary for the Companyperformance by the Manager of its duties and functions hereunder, provided, that such expenses are in amounts no greater than those that would be payable to third-party professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis, and excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary Entities shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated Acquisition Expenses incurred in connection with the formation selection and capital raising activities acquisition of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesInvestments;
(ii) all costs general and administrative expenses of the Company Entities, if any;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, dispositiondevelopment, financingredevelopment, hedging construction, repositioning, leasing, disposition and ownership financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis. For the avoidance of doubt, (a) any Equity Incentive Plan of HCGR or the Operating Partnership in which any person referred to in Section 7(a) above participates, and (b) all salaries, bonuses and other wages, payroll taxes and the cost of employee benefit plans of any persons referred to in Section 7(a) above, and costs of insurance with respect to any such person, shall be included in the operation of this Section 7(b)(iv);
(v) the compensation and expenses of HCGR’s directors and the cost of liability insurance to indemnify the Company and its directors and officers;
(vi) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of HCGR’s securities offerings;
(iiivii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity the securities or debt securities issued by the of any Company or any Subsidiary Entity and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged payable by the Company or to any Subsidiary or transfer agent and registrar in connection with the listing and/or trading of HCGR’s securities on any exchange, the fees payable by the Manager for Company to any such exchange in connection with its listing, costs of preparing, printing and mailing HCGR’s annual report to its stockholders or the account Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of HCGR’s stockholders or the Company or any SubsidiaryOperating Partnership’s partners, as applicable;
(viii) all insurance costs incurred by associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersEntities;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsexpenses incurred by managers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to Manager for travel on the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert behalf and other fees out-of-pocket expenses incurred by managers, officers, personnel and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer agents of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseacquisition, consideration for purchasedevelopment, redevelopment, construction, repositioning, leasing, financing, refinancing, sale or other disposition of an Investment or establishment of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activityHCGR’s securities offerings, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment planFinancing Transaction;
(xvix) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(xi) compensation and expenses of HCGR’s custodian and transfer agent, howeverif any;
(xii) the costs of maintaining compliance with all federal, that state and local rules and regulations or any other regulatory agency
(xiii) all taxes and license fees;
(xiv) all insurance costs incurred in connection with the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xv) costs and expenses incurred in contracting with third parties:
(xvi) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xvii) expenses relating to any office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained for any Company Entity or their Investments separate from the office or offices of the Manager, if any;
(xviii) all costs and expenses incurred connected with respect the payments of interest, dividends or distributions in cash or any other form authorized or caused to administering be made by the Company’s incentive plansBoard to or on account of holders of the securities of any Company Entity, including, without limitation, in connection with any dividend reinvestment plan;
(xix) rent any judgment or settlement of pending or threatened proceedings (including disaster recovery facilities costs and expenses)whether civil, telephonecriminal or otherwise) against any Company Entity, utilitiesor against any trustee, office furnituredirector, equipmentpartner, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share member or officer of such expensesCompany Entity in his capacity as such for which any Company Entity is required to indemnify such trustee, as determined director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyany court or governmental agency; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (HC Government Realty Trust, Inc.)
Expenses of the Company. (a) The Except as provided in Section 7(b)(xx), the Manager shall be responsible for (i) the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Overhead Sharing Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Bimini or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel and (ii) all costs and expenses incurred by the Company in connection with the Initial Offering greater than an amount equal to 1.0% of the total gross proceeds of the Initial Offering.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement or of Bimini pursuant to the Overhead Sharing Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s private placement memoranda and registration statements, (B) the initial all private and public offering offerings of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities; provided, however, that, for all costs and expenses paid by the Manager in connection with the Initial Offering, the Company is only obligated to reimburse the Manager up to an amount equal to 1.0% of the gross proceeds of the Initial Offering;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital the Manager or any of its Affiliates), and and, subject to clause (xiii) below, all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share share, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive and benefit plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company; and
(xx) the Company’s allocable share of the compensation of its Chief Financial Officer, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, based on the percentage of time spent on the Company’s affairs.
(xxi) all other expenses (other than those described in Section 7(a) above) actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).. For the avoidance of doubt, payment for all services provided to the Company by AVM, L.P. (including repurchase agreement trading, clearing and administrative services) shall be made by the Company directly to AVM, L.P.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Except as set forth in Section 7(b)(xx), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Overhead Sharing Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Bimini or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Subject to Section 7(c) below, the Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, including its pro rata share of certain overhead expenses incurred by the Manager or its Affiliates related to the performances of the services pursuant to this Agreement, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without Subject to Section 7(c) below, without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s private placement memoranda and registration statements, (B) the initial all private and public offering offerings of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq the OTC Bulletin Board (and any other exchange or over-the-counter market), among other such entitiesentities and (E) any fees and expenses associated with the Company’s initial qualification as a REIT;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (Bimini Capital Management, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata proportionate share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (American Capital Agency Corp)
Expenses of the Company. (a) The Subject to Section 8(b)(iv), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Investment Advisory Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel; provided, however, the Company shall reimburse the Manager or its affiliates for the allocable share of the compensation, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits paid to (1) the Company’s Chief Financial Officer based on the percentage of his time spent on the Company’s affairs, (2) the Company’s General Counsel, based on the percentage of his time spent on the Company’s affairs, and (3) other corporate finance, tax, accounting, internal audit, legal risk management, operations, compliance and other non-investment personnel of the Manager and its affiliates who spend all or a portion of their time managing the Company’s affairs based upon the percentage of time devoted by such personnel to the Company’s affairs.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the CompanyCompany or any Subsidiary, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a8(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its SubsidiariesCompany, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering any and all costs and expenses of the CompanyInitial Public Offering, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. Authority and Nasdaq the NYSE (and or any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, origination, disposition, development, modification, protection, maintenance, financing, hedging refinancing, hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets (including costs and expenses incurred for transactions that are not subsequently completed), including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, loan servicing fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of diligence, foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence (including due diligence costs for assets that are not subsequently acquired), asset management, securitization, property management, brokerage, leasing and other services that outside professionals or outside consultants perform or otherwise would perform on the Company’s behalf and that are performed by the Manager or an Affiliate thereof, as provided in Section 2
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyany Subsidiary, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities agreements and other indebtedness of the Company and its Subsidiaries, if or any Subsidiary (including commitment fees, accounting fees, legal fees, closing and other costscosts and expenses);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents (including real estate underwriters, brokers and special servicers) engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
(x) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the portfolio accounting systems of the Company or any Subsidiary;
(Bxi) “all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also officers or employees of the Manager), all expenses of directors of the Company or any Subsidiary (including those directors who are also employees of the Manager), the cost of directors’ and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expensesexpenses and all outsourced internal audit costs);
(xixiii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the CompanyCompany or any Subsidiary, or which the Company or any Subsidiary is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 9 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, officers and employees of the Company or any Subsidiary and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyor any Subsidiary;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiariesany Subsidiary, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site website or sites and (B) the Company’s pro rata share of associated with any computer software, hardware hardware, electronic equipment or purchased information technology services from third party vendors that is used by primarily for the CompanyCompany or any Subsidiary;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxi) rent the costs and expenses of maintaining compliance with all U.S. federal, state, local and applicable regulatory body rules and regulations;
(xxii) expenses relating to any office or office facilities, including disaster backup recovery facilities sites and facilities, maintained for the Company or any Subsidiary separate from the offices of the Manager;
(xxiii) all other expenses of the Company or any Subsidiary relating to the business and investment operations of the Company, including, without limitation, the costs and expenses)expenses of acquiring, originating, owning, protecting, maintaining, financing, refinancing, developing, modifying and disposing of investments that are not the responsibility of the Manager under Section 9(a) of this Agreement; and
(xxiv) all other expenses actually incurred by the Manager or its Affiliates or their respective managers, officers, directors, employees, members, representatives or agents, or any Affiliates thereof, that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement. In addition, the Company will be required to pay the Company’s and any Subsidiary’s pro rata portion of rent, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s and the Subsidiaries’ operations; provided. These expenses will be allocated between the Manager, howeveron the one hand, that and the Company shall only be responsible for a proportionate share and any Subsidiary, on the other hand, based on the ratio of such expenses, as determined the Company’s and the Subsidiaries’ proportion of gross assets compared to all remaining gross assets managed by the Manager in good faith, where as calculated at each fiscal quarter end; it being understood that all of such costs and expenses were not incurred solely for that are directly related to the benefit operations and business of the Company; and
(xx) all other expenses actually incurred Company or any Subsidiary shall be fully paid by the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereofSubsidiary. The Manager and the Company will modify this allocation methodology, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating subject to the Company’s compliance with all governmental and regulatory matters)Board of Directors’ approval, if the allocation becomes inequitable.
(c) Costs and expenses incurred by the Manager or an Affiliate thereof on behalf of the Company or any Subsidiary shall be reimbursed monthly no less frequently than quarterly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company or any Subsidiary during each monthfiscal quarter (or portion thereof), and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five fiscal quarter (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.portion
Appears in 1 contract
Samples: Management Agreement (AG Mortgage Investment Trust, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the origination, acquisition, disposition and financing of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation investments of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, financial, tax, accounting, servicing, due diligence, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors, the cost of liability insurance to indemnify the Company’s directors and officers and the Company’s allocable portion of the fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premium;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders, partners or its Subsidiaries, if any, including, without limitation, principal, interest members and the costs associated proxy materials with the establishment and maintenance of respect to any credit facilities, warehouse loans, repurchase facilities and other indebtedness meeting of the Company and its SubsidiariesCompany’s stockholders, if any (including commitment fees, legal fees, closing and other costs)partners or members;
(vi) all taxes and license fees applicable to costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including interest and penalties thereonCompany;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company’s behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design establishment and maintenance of any of the Company’s web site securitizations or sites and (B) any of the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Companysecurities offerings;
(xviiviii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such ;
(ix) compensation and expenses were not incurred solely for the benefit of the Company’s custodian and transfer agent, if any;
(xviiix) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all federal, state and local taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company’s business, including an allocable portion of the costs attributable to insurance that the Manager or its Affiliates carry that cover the Company and its business (but not including costs of the insurance required by Section 2(l) above);
(xiii) costs and expenses incurred in contracting with respect third parties;
(xiv) all other costs and expenses relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of originating, acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xixxv) rent expenses (including disaster recovery facilities costs and expenses)the Company’s pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company;
(xvi) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s securities, including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, or against any trustee, director, partner, member or officer of the Company in his capacity as such for which the Company is required to indemnify such trustee, director, partner, member or officer by any court or governmental agency;
(xviii) expenses connected with calculating Core Earnings (including the cost and expenses of any independent valuation firm); and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(includingb) The Company shall have no obligation to reimburse the Manager or its Affiliates for the salaries and other compensation of the Manager’s investment professionals who provide services to the Company under this Agreement, without limitationexcept that the Company shall reimburse the Manager or its Affiliates, as applicable, for the Company’s allocable share of the compensation (whether paid in cash, stock or other forms), including annual base salary, bonus, any fees related withholding taxes and employee benefits, paid to (i) the Manager’s personnel serving as the Company’s chief financial officer based on the percentage of his or expenses relating her time spent managing the Company’s affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company’s affairs. The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s compliance affairs. The Manager shall provide the Company with all governmental and regulatory matters)such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(d) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, deduction offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(e) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
Appears in 1 contract
Samples: Management Agreement (Ares Commercial Real Estate Corp)
Expenses of the Company. (a) The Expenses borne by the Manager. Without regard to the compensation received by the Manager, the Manager shall be responsible for the expenses related to bear any and all personnel expenses internal to the operations of the Manager and its Affiliates who provide or incurred in connection with the Manager’s performance of the services to be provided under this Agreement, including, but not limited to, the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement following expenses:
(including each 1) employment expenses of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of personnel employed by the Manager, American Capital or any of their Affiliates), including, without limitationbut not limited to, salaries, bonus and other wages, payroll taxes taxes, and the cost of employee benefit plans plans;
(2) rent, telephone, utilities, office furniture, equipment and machinery (including computers, to the extent utilized) and other office expenses (such as asset/liability software, modeling software and other software and hardware) of such personnel, the Manager needed in order to perform its duties as set forth herein;
(3) bookkeeping fees and expenses including any costs of insurance computer services;
(4) miscellaneous administrative expenses incurred in supervising and monitoring the Company's investments or any subsidiary's investments or relating to performance by the Manager of its functions;
(5) expenses connected with respect the acquisition of the Company's assets and mortgage loans;
(6) travel and related expenses of personnel of the Manager when attending meetings or performing other business activities which relate to such personnelthe Company or any subsidiary of the Company.
(b) Expenses borne by the Company. The Company or any subsidiary of the Company shall pay all of its costs and expenses and shall reimburse except those which are the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the specific responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without agreement; and, without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by subsidiary of the Company and shall not be paid by the Manager. Further, it is understood that none of the expenses listed below will include any expenses internal to the operations of the Manager or Affiliates related in any way to the Manager’s performance of the Managerservices detailed in this Management Agreement:
(i1) the Company’s cost of borrowed money;
(2) all costs and expenses associated with taxes applicable to the formation and capital raising activities Company or any subsidiary of the Company including interest and its Subsidiariespenalties;
(3) legal, if anyaccounting and auditing fees and expenses relating to the Company and/or any subsidiary;
(4) expenses connected with the ownership and disposition of the Company's or any subsidiary's assets, including, without limitationbut not limited to, costs of completion, foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned by the costs and expenses of (A) the preparation Company or any subsidiary of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii5) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consultingunderwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and chargesfees, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s 's or any Subsidiary’s subsidiary's equity securities or debt securities;
(iv6) the expenses of organizing, modifying or dissolving the Company or any subsidiary of the Company;
(7) all insurance costs incurred in connection with the Company or any subsidiary of the Company;
(8) expenses connected with payments of dividends or interest or distributions in any other form made or caused to be made by the Board of Directors to holders of the securities of the Company or any subsidiary of the Company;
(9) expenses connected with the structuring and issuance of mortgage securities by the Company or any subsidiary of the Company, including but not limited to trustee's fees, insurance premiums, and costs of required credit enhancements;
(10) travel and related expenses of the directors of the Company when attending meetings or performing other business activities which relate to the Company;
(11) all expenses relating to of third parties connected with communications to holders of equity securities or debt securities issued by of the Company or any Subsidiary subsidiary of the Company and the other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC)agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s 's or any Subsidiary’s subsidiary's securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary subsidiary of the Company is a party;
(v12) all costs fees and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company trustees or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary subsidiary of the Company, the cost of director and officer liability insurance and premiums for fidelity and errors and omissions insurance;
(excluding those directors who are also directors, officers, employees or agents of American Capital 13) any judgment rendered against the Company or any subsidiary of its Affiliates)the Company, and all expenses of all directors or against any trustee or director of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer subsidiary of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trusteetrustee or director, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;; and
(xiii14) all travel and related other miscellaneous expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity subsidiary of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were which are not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead specified expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to Company or any and all personnel subsidiary of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only except those expenses that which are specifically the responsibility of the Manager pursuant to Section 7(a8(a) of this Agreement. Without , and without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by subsidiary of the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i1) all costs and expenses associated with The cost of the formation and capital raising activities borrowed money;
(2) All taxes applicable to the Company or any subsidiary of the Company including interest and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiespenalties thereon;
(ii3) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legalLegal, audit, accounting, consultingunderwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and chargesfees, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s 's or any Subsidiary’s subsidiary's equity securities or debt securities;
(iv4) all Fees and expenses relating paid to advisors and independent contractors, consultants, managers, and other agents engaged directly by the Company or any subsidiary of the Company or by the Manager at the Company's or such subsidiary's request for the account of the Company or any subsidiary of the Company (other than the Manager);
(5) Expenses connected with the acquisition, disposition and ownership of the Company's or any subsidiary's investment assets, including but not limited to commitment fees, brokerage fees, guaranty fees and hedging fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned by the Company or any subsidiary of the Company;
(6) The expenses of organizing, modifying or dissolving the Company or any subsidiary of the Company;
(7) All insurance costs incurred in connection with the Company or any subsidiary of the Company;
(8) Expenses connected with payments of dividends or interest or distributions in any other form made or caused to be made by the Board of Directors to holders of the securities of the Company or any subsidiary of the Company;
(9) Expenses connected with the structuring of the issuance of Mortgage Securities by the Company or any subsidiary of the Company, including but not limited to trustee's fees, insurance premiums, and costs of required credit enhancements;
(10) All expenses of third parties connected with communications to holders of equity securities or debt securities issued by of the Company or any Subsidiary subsidiary of the Company and the other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC)agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s 's or any Subsidiary’s subsidiary's securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary subsidiary of the Company is a party;
(v11) all costs Transfer agent's and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest registrar's fees and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)charges;
(vi12) all taxes Fees and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees expenses paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company trustees or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors subsidiary of the Company or any Subsidiary incurred in their capacity as suchCompany, the cost of director and officer liability insurance and premiums for fidelity and errors and omissions insurance;
(x13) all third-party legalLegal, accounting and auditing fees and expenses and other similar services relating to the Company’s 's or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses)subsidiary's operations;
(xi14) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any Any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) rendered against the Company or any Subsidiarysubsidiary of the Company, or against any trustee, trustee or director or officer of the Company or any Subsidiary subsidiary of the Company in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trusteetrustee or director, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii15) all travel Expenses relating to any office or office facilities maintained by the Company or any subsidiary of the Company exclusive of the office of the Manager;
(16) Expenses related to the servicing and subservicing of Mortgage Loans;
(17) Travel and related expenses of directors, officers and employees personnel of the Company and the Manager, incurred in connection with Manager when attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that which relate solely to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit subsidiary of the Company; and
(xx18) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and Other miscellaneous expenses of the Company and those incurred by the Manager on behalf or any subsidiary of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end which are not expenses of each month. The Company shall pay all amounts payable to the Manager pursuant to this under Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination8(a).
Appears in 1 contract
Samples: Management Agreement (American Residential Investment Trust Inc)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the diligencing, underwriting, acquisition, dispositionnegotiation, financingstructuring, origination, trading, settling, operation, servicing, disposition and financing of the assets and investments of the Company (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees, costs and expenses of legal, financial, tax, accounting, underwriting, originating, servicing, due diligence, consulting, auditing (including internal audit), operational and administrative, investment banking, capital markets and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses of the Company’s or any Subsidiarydirectors and the cost of liability insurance to indemnify the Company’s investmentsdirectors and officers;
(iv) interest and fees and expenses arising out of borrowings made by the Company, including, without limitationbut not limited to, costs associated with the establishment and expenses incurred in contracting with third parties to provide such servicesmaintenance of any of the Company’s credit facilities, such as legal other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders, partners or its Subsidiaries, if any, including, without limitation, principal, interest members and the costs associated proxy materials with the establishment and maintenance of respect to any credit facilities, warehouse loans, repurchase facilities and other indebtedness meeting of the Company Company’s stockholders, partners or members and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)reports or related statements;
(vi) all taxes and license fees applicable to the Company or any Subsidiarycosts associated with technology related expenses, including interest any computer software or hardware, electronic equipment or purchased information technology services from third party vendors or Affiliates of the Manager, technology service providers and penalties thereon;related software/hardware utilized in connection with the Company’s investment and operational activities;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company’s behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design establishment and maintenance of any of the Company’s web site securitizations or sites and (B) any of the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Companysecurities offerings;
(xviiviii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(ix) the costs of maintaining compliance with all federal, howeverstate and local rules and regulations or any other regulatory agency;
(x) all federal, that state and local taxes and license fees;
(xi) all insurance costs incurred by or on behalf of the Company shall only be responsible for a proportionate share of such expenses, as determined by in connection with the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business, except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel such as coverage for employers’ liability, fidelity or errors and omissions insurance;
(xviiixii) all other costs and expenses incurred with respect relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of originating, acquiring, owning, protecting, servicing, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xixxiii) rent expenses (including disaster recovery facilities costs and expenses)the Company’s portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, calculated in accordance with the Company’s actual usage of such facilities, equipment or services, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the operation of the Company;
(xiv) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s operations; providedsecurities, however, that including in connection with any dividend reinvestment plan;
(xv) the costs of any litigation involving the Company shall only be responsible for a proportionate share or its assets and the amount of such expensesany judgment or settlement of pending or threatened proceedings (whether civil, as determined by criminal or otherwise) against the Manager Company, or against any trustee, director, partner, member or officer of the Company in good faithhis or her capacity paid in connection therewith, where such expenses were not incurred solely for directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the benefit affairs of the Company; and
(xxxvi) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(includingb) The Manager shall be responsible and the Company shall have no obligation to reimburse the Manager or its Affiliates for the salaries, without limitationbonuses, employee benefits, perquisites, taxes and expenses associated with the Manager’s personnel who provide investment advice and investment services to the Company under this Agreement. The Company shall reimburse the Manager or its Affiliates, as applicable, for the Company’s allocable share of the compensation, including annual base salary, bonus and any fees related withholding taxes and employee benefits, paid to (i) the Manager’s personnel serving as the Company’s chief financial officer and general counsel, based on the percentage of their time spent managing the Company’s affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or expenses relating a portion of their time managing the Company’s affairs. The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s compliance affairs. The Manager shall provide the Company with all governmental and regulatory matters)such written detail as the Company may reasonably request to support the determination of the Company’s share of such costs.
(c) In addition, the Manager shall be responsible and the Company shall have no obligation to reimburse the Manager or its Affiliates for costs and expenses incurred by the Manager in connection with Company’s initial public offering of its common stock and the formation transaction contemplated by the Contribution Agreement, dated the date hereof, among and the Company, Two Harbors Operating Company LLC and Two Harbors’ Investment Corp.
(d) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(e) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall use commercially reasonable efforts to deliver such written statement to the Company within thirty (30) days after the end of each monthmonth (subject to reasonable delays resulting from delays in the receipt of information). The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(f) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager’s acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to the Manager’s unsatisfactory performance.
Appears in 1 contract
Samples: Management Agreement (Granite Point Mortgage Trust Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only the Underwriting Fee and those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the CompanyCompany and the concurrent private placement, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, investor relations, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital Mortgage or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan or direct stock purchase plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s equity incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delaydelay (unless those amounts are the subject of a good faith dispute). Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (American Capital Mortgage Investment Corp.)
Expenses of the Company. (a) The Except as provided in Section 7(b)(xx), the Manager shall be responsible for (i) the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Overhead Sharing Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Bimini or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel and (ii) all other costs and expenses payable by the Manager under the Overhead Sharing Agreement and (iii) all costs and expenses incurred by the Company in connection with the Initial Offering.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement or of Bimini pursuant to the Overhead Sharing Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s private placement memoranda and registration statements, (B) the initial all private and public offering offerings of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities; provided, however, that, for all costs and expenses paid by the Manager in connection with the Initial Offering, the Company is not obligated to reimburse the Manager any of these expenses;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital the Manager or any of its Affiliates), and and, subject to clause (xiii) below, all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share share, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive and benefit plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company; and
(xx) the Company’s allocable share of the compensation of its Chief Financial Officer, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month).
(xxi) all other expenses (other than those described in Section 7(a) above) actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).. For the avoidance of doubt, payment for all services provided to the Company by AVM, L.P. (including repurchase agreement trading, clearing and administrative services) shall be made by the Company directly to AVM, L.P.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the employment expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement Manager’s employees (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the any and all costs and expenses of an initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, development, protection, maintenance, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets, including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence, asset management, securitization, property management, leasing tasks and other services that outside professionals or outside consultants perform;
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
(x) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems;
(Bxi) “all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also officers or employees of the Manager), all expenses of directors of the Company or any Subsidiary (including those directors who are also employees of the Manager), the cost of directors and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xixiii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, hardware or information technology services that is used by primarily for the Company;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxi) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters);
(xxii) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company, which for the first twelve (12) months from the date hereof shall not exceed $2 million; and
(xxxxiii) all other expenses actually incurred by of the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereofSubsidiary relating to the Company’s business and investment operations, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or the costs and expenses relating to of acquiring, owning, protecting, maintaining, developing and disposing of investments that are not the Company’s compliance with all governmental and regulatory matters)responsibility of the Manager under Section 8(a) of this Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five ten (510) Business Days days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its the costs and expenses of the Company and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the CompanyCompany or any subsidiary or in connection with this Agreement, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) 7.1 of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary subsidiary of the Company shall be paid by the Company and shall not be paid by the Manager or and/or the Affiliates of the Manager:
(i) 7.2.1 all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if anysubsidiaries, including, without limitation, the costs and expenses of (A) the Company’s 144A transaction, the preparation of the Company’s registration statements, (B) the and any and all costs and expenses of an initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SECSecurities and Exchange Commission, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the New York Stock Exchange (and any other exchange or over-the-counter market), among other such entities;
(ii) 7.2.2 all costs and expenses in connection with the acquisition, disposition, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiarysubsidiary’s investmentsinvestment assets (including, without limitation, the Mortgage Assets) and, including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned by the Company or any subsidiary of the Company;
7.2.3 all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems;
7.2.4 all costs and expenses of money borrowed by the Company or its subsidiaries, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans and other indebtedness of the Company and its subsidiaries (iii) including commitment fees, legal fees, closing and other costs);
7.2.5 all taxes and license fees applicable to the Company or any subsidiary of the Company, including interest and penalties thereon;
7.2.6 all legal, audit, accounting, consultingunderwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and chargesfees, printing, engraving engraving, clerical, personnel and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiarysubsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by 7.2.7 other than for the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingManager Obligations, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents (other than the Manager or any Sub-manager) engaged by the Company or any Subsidiary subsidiary of the Company or by the Manager for the account of the Company or any Subsidiarysubsidiary of the Company (other than the Manager or Sub-manager) and all employment expenses of the personnel employed by the Company or any subsidiary of the Company (including, without limitation, a chief financial officer of the Company, but excluding any personnel which are also employed by the Manager or Sub-manager), including, without limitation, the salaries, wages, equity based compensation of such personnel, payroll taxes and the incremental cost for administering employee benefit plans of the Manager which are used by such personnel;
(viii) 7.2.8 all insurance costs incurred by the Company or any Subsidiarysubsidiary of the Company, including, without limitation, the cost of obtaining and maintaining (A) any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
7.2.9 all custodian, transfer agent and registrar fees and charges;
7.2.10 all compensation and fees paid to directors of the Company or any subsidiary of the Company (B) “excluding those directors who are also employees of the Manager), all expenses of directors of the Company or any subsidiary of the Company (including those directors who are also employees of the Manager), the cost of directors and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(x) 7.2.11 all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiarysubsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) 7.2.12 all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, 7.2.13 any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiarysubsidiary of the Company, or against any trustee, director or officer of the Company or any Subsidiary subsidiary of the Company in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) 7.2.14 all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary subsidiary of the Company or performing other business activities that relate to the Company or any Subsidiarysubsidiary of the Company, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment Mortgage Assets or potential investment other investments of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) 7.2.15 all expenses of organizing, modifying or dissolving the Company or any Subsidiary subsidiary of the Company and costs preparatory to entering into a business or activity, or costs of winding up or disposing of a business of activity of the Company or its Subsidiaries, if anysubsidiaries;
(xv) 7.2.16 all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiarysubsidiary of the Company, including, without limitation, in connection with any and dividend reinvestment plan;
(xvi) 7.2.17 all expenses of third parties relating to communications to holders of equity securities or debt securities issued by the Company or any subsidiary of the Company and the other bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any subsidiary’s securities and reports to third parties required under any indenture to which the Company or any subsidiary of the Company is a party;
7.2.18 subject to Section 7.1, all expenses relating to any office or office facilities maintained by the Company or any subsidiary of the Company exclusive of the office of the Manager and/or Affiliates of the Manager, including, without limitation, rent, telephone, utilities, office furniture, equipment, machinery and other office expenses for the Company’s chief financial officer and any other persons the Board of Directors authorizes the Company to hire;
7.2.19 all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, software or hardware or information technology services that is used by solely for the Company;
(xvii) 7.2.20 other than for the Manager Obligations, all other costs and expenses incurred with respect relating to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all ’s business and investment operations, including, without limitation, the costs and expenses incurred with respect to administering the Company’s incentive plansof acquiring, owning, protecting, maintaining, developing and disposing of Mortgage Assets, including, without limitation, appraisal, reporting, audit and legal fees;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and 7.2.21 other office, internal and overhead expenses of than for the Manager and its Affiliates required for the Company’s operations; providedObligations, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or Manager, its Affiliates or any Sub-manager or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).; and
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and 7.2.22 all other expenses of the Company and those incurred by the Manager on behalf or any subsidiary of the Company during each month, and shall deliver such written statement to that are not the Company within thirty (30) days after the end responsibility of each month. The Company shall pay all amounts payable to the Manager pursuant to this under Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions 7.1 of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or terminationAgreement.
Appears in 1 contract
Samples: Management Agreement (Luminent Mortgage Capital Inc)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. In addition, the Manager agrees to pay for the following expenses:
(i) The Manager agrees to pay the underwriters of the Initial Public Offering the underwriting discount equal to $[ ] per share of Common Stock sold in the Initial Public Offering;
(ii) The Manager agrees to pay the placement agent of the Unit Private Placement the placement agent equal to $[ ] per Unit sold in the Unit Private Placement (other than any Units sold to investors with which the Manager has had a pre-existing business relationship); and
(iii) The Manager agrees to pay any other expenses in excess of $1.2 million, which shall be borne by the Company, (excluding the amounts described in immediately preceding clauses (i) and (ii)) incurred in connection with the organization of the Company and/or the Initial Public Offering or Unit Private Placement.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this AgreementAgreement and provided that any such costs and expenses borne by the Manager and reimbursed by the Company are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities of transaction costs incident to the Company acquisition, disposition and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation financing of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesSubsidiaries’ investments;
(ii) all costs of legal, tax, accounting, consulting, auditing, administrative and other similar services rendered for us by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection of the Company’s directors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the acquisitionestablishment and maintenance of any of the Company’s credit facilities, dispositionother financing arrangements, financingor other indebtedness of the Company’s (including commitment fees, hedging accounting fees, legal fees, closing and ownership other similar costs) or any of the Company’s securities offerings;
(v) expenses connected with communications to holders of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration securities and other fees bookkeeping and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies agencies, including, without limitation, all costs of preparing and filing required reports with the SEC, the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by directors, officers, personnel and agents of the Manager for travel solely on the Company’s behalf and other out-of-pocket expenses incurred by directors, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any of the Company’s repurchase agreements, securitizations or any of the Company’s securities offerings;
(viii) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(ix) compensation and expenses of the Company’s custodian and transfer agent, if any;
(x) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company’s business, except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with the Custodian and other third parties, including Affiliates of the Manager for the servicing and special servicing of the Company’s and any Subsidiaries’ assets;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the SEC)costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any costs office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained by the Manager or its Affiliates for the Company or the Company’s or any Subsidiaries’ investments separate from the office or offices of computer services the Manager;
(xvi) expenses connected with the payments of interest, dividends or distributions in connection with this function, cash or any other form authorized or caused to be made by the cost Board to or on account of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anysecurities, including, without limitation, principal, interest and the costs associated in connection with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities dividend reinvestment plan;
(xvii) expenses related to litigation and other indebtedness of legal matters involving the Company and its any Subsidiaries, if any (including commitment fees, legal fees, closing the fees and other costs)expenses of outside counsel;
(vixviii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed in cash monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar fiscal year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.this
Appears in 1 contract
Samples: Management Agreement (Western Asset Mortgage Capital Corp)
Expenses of the Company. (a) The Subject to Sections 2(e) and 7(b), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement otherwise (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, officers or employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel (“Manager Expenses”).
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for documented costs and expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the other than Manager pursuant to Section 7(a) of this AgreementExpenses. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the acquisition, dispositionnegotiation, financingstructuring, trading, settling, disposition and financing of the investments of the Company and its Subsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees, costs and expenses of legal, tax, accounting, consulting, auditing (including internal audit), finance, administrative, investment banking, capital market and other similar services rendered to the Company (including, where the context requires, through one or more third parties and/or Affiliates of the Manager) or, if provided by the Manager’s personnel, in accordance with Section 2(e) hereof;
(iii) the compensation and expenses of the Company’s or any Subsidiarydirectors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the Company’s investmentsdirectors and officers;
(iv) interest and fees and expenses arising out of borrowings made by the Company, including, without limitationbut not limited to, costs associated with the establishment and expenses incurred in contracting with third parties to provide such servicesmaintenance of any of the Company’s credit facilities, such as legal other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders and any other reports or related statements;
(vi) the Company’s allocable share of costs associated with technology-related expenses, including without limitation, any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Manager, technology service providers and related software/hardware utilized in connection with the Company’s investment and operational activities;
(vii) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of an investment or the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) the Company’s allocable share of costs and expenses incurred with respect to market information systems and publications, research publications and materials, including, without limitation, news research and quotation equipment and services;
(ix) the costs and expenses relating to ongoing regulatory compliance matters and regulatory reporting obligations relating to the Company’s activities;
(x) the costs of any litigation involving the Company or its assets and the amount of any judgments or settlements paid in connection therewith, directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the affairs of the Company;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) the Company’s allocable share of costs and expenses incurred in contracting with third parties, in whole or any Subsidiaryin part, on the Company’s behalf;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specifically excluded herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and The Manager may, at its option, elect not to seek reimbursement for certain expenses incurred by the Manager on behalf during a given quarterly period, which determination shall not be deemed to construe a waiver of the Company shall be reimbursed monthly to the Manager. reimbursement for similar expenses in future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company and those incurred during each fiscal quarter to be reimbursed by the Manager on behalf of the Company during each monthCompany, and shall use commercially reasonable efforts to deliver such written statement the same to the Company within thirty forty-five (3045) days after following the end of each month. The Company shall pay all amounts payable the applicable fiscal quarter (subject to the Manager pursuant to this Section 7(c) within five (5) Business Days after reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the written Company within ten (10) days following delivery of the expense statement without demandby the Manager; provided, deduction, that such payments may be offset or delayby the Manager against amounts due to the Company from the Manager. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. .
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (Blackstone Mortgage Trust, Inc.)
Expenses of the Company. (a) The Subject to Section 7(b), the Manager shall be responsible for the expenses related to any and all the personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (otherwise, including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel, except for the allocable share of the salaries and other compensation of the Company’s (a) Chief Financial Officer, based on the percentage of his time spent on the affairs of the Company and (b) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment professional personnel of the Manager or its Affiliates who spend all or a portion of their time managing the affairs of the Company based on the percentage of their time spent on the affairs of the Company.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for documented costs and expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those other than the expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement). Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the acquisition, dispositionnegotiation, financingstructuring, trading, settling, disposition and financing of the investments of the Company and its Subsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs, fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees, costs, and expenses of legal, tax, accounting, consulting, auditing, finance, administrative, investment banking, capital market and other similar services rendered to the Company (including, where the context requires, by or through one or more third parties and/or Affiliates of the Manager) or, if provided by the Manager’s personnel or personnel of Affiliates of the Manager, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses of the Company’s or any Subsidiarydirectors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the Company’s investments, including, without limitation, costs directors and officers;
(iv) interest and fees and expenses incurred in contracting arising out of borrowings made by the Company, including costs associated with third parties to provide such servicesthe establishment and maintenance of any of the Company’s credit facilities, such as legal other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders and any other reports or any Subsidiary is a partyrelated statements;
(vvi) all costs and expenses the Company’s allocable share of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with technology-related expenses, including any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Manager that is used solely for the Company, technology service providers and related software/hardware utilized in connection with the Company’s investment and operational activities;
(vii) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of an investment or the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness securitizations or any of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any SubsidiaryCompany’s securities offerings;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company’s allocable share of costs and expenses incurred with respect to market information systems and publications, research publications and (3) underwriters of any securities of the Companymaterials, (B) “errors including news research and omissions” insurance coverage, quotation equipment and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersservices;
(ix) all compensation the costs and fees paid expenses relating to directors of ongoing regulatory compliance matters and regulatory reporting obligations relating to the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchCompany’s activities;
(x) all third-party legalthe costs of any litigation involving the Company or its assets and the amount of any judgments or settlements paid in connection therewith, accounting directors and auditing fees officers, liability or other insurance and expenses and other similar services indemnification or extraordinary expense or liability relating to the affairs of the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert taxes and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directorslicense fees;
(xii) subject all insurance costs incurred in connection with the operation of the Company’s business except for the costs attributable to Section 8 belowthe insurance that the Manager elects to carry for itself and its personnel;
(xiii) the Company’s allocable share of costs and expenses incurred in contracting with third parties, in whole or in part, on the Company’s behalf;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xv) expenses (including the Company’s pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, its Subsidiaries, the Manager or their Affiliates required for the Company’s operations;
(xvi) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s securities or of the Subsidiaries, including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any director, trustee, director partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such director, trustee, director partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specifically excluded herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and The Manager may, at its option, elect not to seek reimbursement for certain expenses incurred by the Manager on behalf during a given quarterly period, which determination shall not be deemed to construe a waiver of the Company shall be reimbursed monthly to the Manager. reimbursement for similar expenses in future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company and those incurred during each fiscal quarter to be reimbursed by the Manager on behalf of the Company during each monthCompany, and shall use commercially reasonable efforts to deliver such written statement the same to the Company within thirty forty-five (3045) days after following the end of each month. The Company shall pay all amounts payable the applicable fiscal quarter (subject to the Manager pursuant to this Section 7(c) within five (5) Business Days after reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the written Company within ten (10) days following delivery of the expense statement without demandby the Manager; provided, deduction, that such payments may be offset or delayby the Manager against amounts due to the Company from the Manager. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. .
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for Except as otherwise expressly provided in this Agreement, the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse not assumed by the Manager or its Affiliates for expenses of the Manager as set forth in Section 5.1, and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without without limiting the generality of the foregoing, foregoing it is specifically agreed that the following costs and expenses of the Company (reference in this Section to the Company shall include its related and affiliated companies, partnerships, trusts, business associates or any Subsidiary entities) shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (Aa) the preparation cost of borrowed money, including the Company’s registration statements, (B) the initial public offering repayment of funds borrowed by the Company, (C) the original incorporation interest thereon and initial organization of the Companyall other costs, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty feesborrowings;
(iiib) taxes on income and taxes and assessments on real property, if any, and all other taxes applicable to the Company and its investments;
(c) legal, auditauditing, accounting, consultingunderwriting, brokerage, listing, filingreporting, custodianregistration, transfer agent, rating agency, registration and other fees fees, and charges, printing, engraving engraving, and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration trading, registration, and stock exchange listing of the Company’s 's, the Directors' or any Subsidiary’s equity affiliates of the Company's securities or debt securitiesgood faith attempts thereof, whether or not such issuance, distribution, transfer, trading, registration or listing shall materialize or be implemented;
(ivd) all fees and expenses relating paid to communications to holders of equity securities the Directors, independent Managers, consultants, managers, local property managers, or debt securities issued by the Company or any Subsidiary management firms, and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies agents employed by or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness on behalf of the Company including third party inspectors, engineers, environmental people or entities, and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company appraisers who create or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company update reports or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability inspections or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary reports or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services analyses relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit assets of the Company;
(xive) all expenses directly connected with the acquisition, disposition, and ownership of organizingreal estate interests or other property (including the costs of foreclosure, modifying or dissolving the Company or any Subsidiary insurance premiums, legal services, brokerage and costs preparatory sales commissions, maintenance, repair, improvement, and local management of property) including but not limited to entering into a business or activitytravel and other expenses incurred by Directors, or of winding up or disposing of a business activity officers, partners, employees of the Company or its SubsidiariesDirectors, officers, directors or employees of the Manager which shall be deemed expenses directly connected with the acquisition, disposition, inspection and ownership of real estate interests or other property, whether incurred prior to closing of any such acquisition or disposition or thereafter, and even if anythe closing and acquisition or disposition shall never take place or materialize and shall also include such out-of-pocket costs, and expenses incurred by any such officers, employees or Directors of the Company or Manager (if reasonably necessary or requested by the Company) in establishing or maintaining relationships with underwriters. Any fees or similar costs paid in securing guarantees or other credit enhancement agreements shall be the obligation of the Company. In the event the Manager advances such monies on behalf of the Company, they shall be reimbursable expenses to the Manager upon demand and presentation;
(xvf) all insurance as required by the Directors (including director's liability insurance, if applicable);
(g) expenses relating to connected with payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Company or the Directors to or on account of holders of the securities of the Company Company, the Directors or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit affiliates of the Company;
(xviiih) all costs expenses connected with communications to holders of securities of the Company or affiliates of the Company or the Directors and expenses incurred the other bookkeeping and clerical work necessary in maintaining relations with respect holders of securities including the cost of printing and mailing certificates for securities and proxy solicitation materials and reports to administering the Company’s incentive plansholders of such securities;
(xixi) rent transfer agents', registrars' and indenture trustees' fees and charges;
(including disaster recovery facilities costs j) legal, accounting, and expenses), telephone, utilities, office furniture, equipment, machinery auditing fees and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that affiliates of the Company shall only be responsible for a proportionate share of such expenses, as determined by or the Manager in good faith, where such expenses were not incurred solely for the benefit of the CompanyDirectors; and
(xxk) all other a reasonable allocation of the Manager's rent and overhead costs and expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance officers, Directors and agents of the Company to conduct business in space leased or owned by the Manager including storage of its duties documents and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)files.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to this Section 7(a) of this Agreement7. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the origination, acquisition, disposition and financing of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation investments of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, financial, tax, accounting, servicing, due diligence, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager's personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm's-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s 's directors, the cost of liability insurance to indemnify the Company's directors and officers and the Company's allocable portion of the fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premium;
(iv) costs associated with the establishment and maintenance of any of the Company's credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of the Company's securities offerings;
(iiiv) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity the Company's securities or debt securities issued by the Company or any Subsidiary and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this functionthe listing and/or trading of the Company's securities on any exchange, the cost fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing certificates for such securities the Company's annual report to the Company's stockholders, partners or members and proxy solicitation materials and reports with respect to holders any meeting of the Company’s 's stockholders, partners or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)members;
(vi) all taxes and license fees applicable to costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company or any Subsidiary, including interest and penalties thereonCompany;
(vii) all fees paid to expenses incurred by managers, officers, personnel and expenses agents of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for travel on the account of the Company or any Subsidiary;
(viii) all insurance costs Company's behalf and other out-of-pocket expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchaseservices provided hereunder, consideration for including in connection with any purchase, financing, refinancing, sale or other disposition of any an investment or potential investment establishment and maintenance of any of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit 's securitizations or any of the Company's securities offerings;
(xivviii) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such ;
(ix) compensation and expenses were not incurred solely for the benefit of the Company's custodian and transfer agent, if any;
(xviiix) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all federal, state and local taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company's business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with respect to administering the Company’s incentive plansthird parties;
(xixxiv) rent all other costs and expenses relating to the Company's business and investment operations, including the costs and expenses of originating, acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xv) expenses (including disaster recovery facilities costs and expenses)the Company's pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Manager and its or their Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company;
(xvi) expenses connected with the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company's securities, including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, or against any trustee, director, partner, member or officer of the Company in his capacity as such for which the Company is required to indemnify such trustee, director, partner, member or officer by any court or governmental agency;
(xviii) expenses connected with calculating Core Earnings (including the cost and expenses of any independent valuation firm); and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement Agreement.
(includingb) The Company shall have no obligation to reimburse the Manager or its Affiliates for the salaries and other compensation of the Manager's investment professionals who provide services to the Company under this Agreement, without limitationexcept that the Company shall reimburse the Manager or its Affiliates, as applicable, for the Company's allocable share of the compensation, including annual base salary, bonus, any fees related withholding taxes and employee benefits, paid to (i) the Manager's personnel serving as the Company's chief financial officer based on the percentage of his or expenses relating her time spent managing the Company's affairs and (ii) other corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other non-investment personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company's affairs. The Company's share of such costs shall be based upon the percentage of time devoted by such personnel of the Manager or its Affiliates to the Company’s compliance 's affairs. The Manager shall provide the Company with all governmental and regulatory matters)such written detail as the Company may reasonably request to support the determination of the Company's share of such costs.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(d) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) in cash within five (5) Business Days after the receipt of the written statement without demand, deduction, deduction offset or delay. Cost and expense reimbursement reimbursements to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
(e) Notwithstanding anything contained in this Agreement to the contrary, except to the extent that the payment of additional monies is proven by the Company to have been required as a direct result of the Manager's acts or omissions that result in the right of the Company to terminate this Agreement pursuant to Section 12 of this Agreement, the Manager shall not be required to expend money ("Excess Funds") in connection with any expenses that are required to be paid for or reimbursed by the Company pursuant to this Agreement in excess of that contained in any applicable Company Account (as herein defined) or otherwise made available by the Company to be expended by the Manager hereunder. Failure of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the right of the Company under Section 10(b) of this Agreement to terminate this Agreement due to the Manager's unsatisfactory performance.
Appears in 1 contract
Samples: Management Agreement (Ares Commercial Real Estate Corp)
Expenses of the Company. (a) The Manager shall be responsible for the compensation expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, and (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq NYSE (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, settlement, clearing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive option, restricted stock, dividend equivalent rights or similar plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates Affiliates, including all property insurance coverage and general liability insurance coverage, required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).
(c) Costs Any costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the employment expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement Manager’s employees (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, including salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the Company’s formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, including the costs and expenses of (A) the preparation of the Company’s registration statements, (B) any and all costs and expenses of the initial public offering Initial Public Offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, including filings with the SEC, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, development, protection, maintenance, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets, including, without limitation, including costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence, asset management, securitization, property management, leasing tasks and other services that outside professionals or outside consultants perform on behalf of the Company;
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, including the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) including any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
(x) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems;
(Bxi) “all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also officers or employees of the Manager), all expenses of directors of the Company or any Subsidiary (including those directors who are also employees of the Manager), the cost of directors and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, including all quarterly and annual audit or tax fees and expenses);
(xixiii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, the Company’s directors and officers and employees of the Company and the Manager, ’s employees incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, including travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, including in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, hardware or information technology services that is used by primarily for the Company;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all expenses incurred on behalf of the Company in connection with servicing problem or delinquent loans, or special servicing;
(xxi) the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters);
(xxiii) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s 's operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxxiv) all other expenses actually incurred by of the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses Subsidiary relating to the Company’s compliance with all governmental business and regulatory matters)investment operations, including the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, that are not the responsibility of the Manager under Section 8(a) of this Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five ten (510) Business Days days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The Independent Directors shall, on an annual basis, review and approve the allocation of shared expenses between the Company and the Manager. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager Subject to Sections 2(e) and 7(b), the Advisor shall be responsible for the expenses related to any and all personnel of the Manager Advisor and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement otherwise (including including, without limitation, each of the executive officers of the Company and any directors of the Company who are also directorsportfolio management, officers, employees acquisitions or agents of the Manager, American Capital or any of their Affiliatesinvestment professionals), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel (“Advisor Expenses”).
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager Advisor or its Affiliates for documented costs and expenses of the Manager Advisor and its Affiliates to the extent incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of Company in accordance with this Agreement, other than Advisor Expenses. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager Advisor or Affiliates of the ManagerAdvisor:
(i) all fees, costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the acquisition, negotiation, structuring, trading, settling, disposition and financing of Managed Assets of the Company and its SubsidiariesSubsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and settlement charges, forfeited deposits, and other costs, fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of Managed Assets;
(ii) all expenses associated with the pricing of Managed Assets, risk management expenses, and ordinary and recurring investment expenses, including all fees and expenses directly related to portfolio transactions and positions for the Company’s accounts;
(iii) fees, costs and expenses of legal, tax, accounting, custodial, consulting, auditing (including internal audits), finance, administrative, investment banking, capital markets and other similar services rendered to the Company (including, where the context requires, through one or more third parties and/or Affiliates of the Advisor) or, if anyprovided by the Advisor’s personnel or personnel of Affiliates of the Advisor, in accordance with Section 2(f) hereof;
(iv) reimbursements of costs and expenses (to the extent such costs and expenses would otherwise be reimbursable if incurred by the Advisor or its Affiliates under this Section 7(b) of a Sub-Advisor engaged in accordance with Section 2(g) hereof;
(v) interest and fees and expenses arising out of borrowings made by the Company, including, but not limited to, costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing facilities or arrangements, or other indebtedness of the Company, including repurchase agreements, interest rate or currency swap agreements (including the payment of commitment fees, accounting fees, legal fees, closing and other similar costs);
(vi) the Company’s allocable share of costs associated with technology-related expenses, including without limitation, any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Advisor that are used for the Company, technology service providers and related software/hardware utilized in connection with the Company’s activities;
(vii) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Advisor for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of a Managed Asset or the establishment and maintenance of any of the Company’s financing facilities, arrangements or securitizations;
(viii) the Company’s allocable share of costs and expenses incurred with respect to market information systems and publications, research publications and materials, including, without limitation, news research and quotation equipment and services;
(ix) the Company’s allocable share of the cost per employee (consistent with the Advisor’s or its Affiliate’s general practices) for corporate finance, tax, accounting, internal audit, legal, risk management, operations, compliance and other personnel of the Advisor or one or more of its Affiliates who spend all or a portion of their time managing the Company’s affairs to the extent not otherwise excluded pursuant to Section 7(a). The Company’s share of such costs shall be based upon the percentage of time devoted by such personnel of the Advisor or one or more of its Affiliates to the Company’s and its Subsidiaries’ affairs or another reasonable allocation methodology;
(x) the costs and expenses relating to ongoing regulatory compliance matters and regulatory reporting obligations relating to the Company’s activities;
(xi) the costs of any litigation involving the Company or its Managed Assets and the amount of any judgments or settlements paid in connection therewith, directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the affairs of the Company;
(xii) all taxes and license fees;
(xiii) all insurance costs incurred in connection with the operation of the Company’s business including those insurance coverages required pursuant to Section 2(n) hereof and insurance reimbursements paid to Sub-Advisors;
(xiv) the Company’s allocable share of costs and expenses incurred in contracting with third parties, in whole or in part, on the Company’s behalf;
(xv) all other costs and expenses relating to the Company’s business and operations, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statementsacquiring, (B) the initial public offering of the Companyowning, (C) the original incorporation and initial organization of the Companytrading, and disposing of Managed Assets, including any applicable appraisal, reporting, audit and legal fees, and the compensation and expenses of any custodian, transfer agent or trustee;
(Dxvi) expenses relating to any subsequent offerings and any filing fees and costs of being a public companyoffice(s) or office facilities, including, without limitationbut not limited to, filings with the SEC, the Financial Industry Regulatory Authority, Inc. disaster backup recovery sites and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by facilities maintained for the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness Managed Assets of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)Subsidiaries separate from the office or offices of the Advisor;
(vixvii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, Advisor (except as otherwise specifically excluded herein) which are reasonably necessary for the performance by the Manager Advisor of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and The Advisor may, at its option, elect not to seek reimbursement for certain expenses incurred by the Manager on behalf during a given quarterly period, which determination shall not be deemed to construe a waiver of the Company shall be reimbursed monthly to the Manager. reimbursement for similar expenses in future periods.
(d) The Manager Advisor shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company and those incurred during each fiscal quarter to be reimbursed by the Manager on behalf of the Company during each monthCompany, and shall use commercially reasonable efforts to deliver such written statement the same to the Company within thirty forty-five (3045) days after following the end of each month. The Company shall pay all amounts payable the applicable fiscal quarter (subject to the Manager pursuant to this Section 7(c) within five (5) Business Days after reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the written Company within ten (10) days following delivery of the expense statement without demandby the Advisor; provided, deduction, that such payments may be offset or delayby the Advisor against amounts due to the Company from the Advisor. Cost and expense reimbursement to the Manager Advisor shall be subject to adjustment at the end of each calendar year in connection with the annual audit of CMFT and the Company. .
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Investment Advisory and Management Agreement (Cim Real Estate Finance Trust, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance of securities of the Company and capital raising activities transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(ix) compensation and expenses of the Company’s custodian and transfer agent, if any;
(x) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company or any Subsidiaryoperation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specified herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (American Realty Capital Properties, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its the costs and expenses of the Company and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred solely on behalf of the CompanyCompany or any subsidiary or in connection with this Agreement, excepting only other than (i) those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) 7.1 of this Agreement, and (ii) any costs or expenses incurred by the Manager which the Company is not required to reimburse pursuant to the provisions of Section 7.3 below. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary subsidiary of the Company shall be paid by the Company and shall not be paid by the Manager or and/or the Affiliates of the Manager:Manager (except to the extent of any costs or expenses which the Company is not required to reimburse pursuant to the provisions of Section 7.3 below):
(i) 7.2.1 all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if anysubsidiaries, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial and any and all costs and expenses of any public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SECSecurities and Exchange Commission, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the New York Stock Exchange (and any other exchange or over-the-counter market), among other such entities;
(ii) 7.2.2 all costs and expenses of the Company in connection with the acquisition, disposition, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiarysubsidiary’s investmentsinvestment assets (including, without limitation, the Mortgage Assets) and, including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager (as may be approved by the Company pursuant to the terms of this Agreement), to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees;
(iii) all legal, auditad valorem taxes, accountingcosts of foreclosure, consultingmaintenance, brokerage, listing, filing, custodian, transfer agent, rating agency, registration repair and other fees improvement of property and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued premiums for insurance on property owned by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders subsidiary of the Company;
7.2.3 all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which portfolio accounting systems as may be approved by the Company or any Subsidiary is a partyin writing;
(v) 7.2.4 all costs and expenses of money borrowed by the Company or its Subsidiaries, if anysubsidiaries, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities loans and other indebtedness of the Company and its Subsidiaries, if any subsidiaries (including commitment fees, legal fees, closing and other costs);
(vi) 7.2.5 all taxes and license fees applicable to the Company or any Subsidiarysubsidiary of the Company, including interest and penalties thereon;
(vii) 7.2.6 all legal, audit, accounting, underwriting, brokerage, listing, filing, rating agency, registration and other fees, printing, engraving, clerical, personnel and other expenses and taxes of the Company incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any subsidiary’s equity securities or debt securities;
7.2.7 other than for the Manager Obligations, all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents (other than the Manager) engaged by the Company or any Subsidiary subsidiary of the Company or by the Manager for the account of the Company or any Subsidiarysubsidiary of the Company (other than the Manager) and all employment expenses of the personnel employed by the Company or any subsidiary of the Company, including, without limitation, the salaries (base and bonuses alike), wages, equity based compensation of such personnel, and payroll taxes;
(viii) 7.2.8 all insurance costs incurred by the Company or any Subsidiarysubsidiary of the Company;
7.2.9 all custodian, includingtransfer agent and registrar fees and charges incurred by the Company;
7.2.10 all compensation and fees paid to directors of the Company or any subsidiary of the Company, without limitationall expenses of directors of the Company or any subsidiary of the Company (including those directors who are also employees of the Manager), the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Companyliability insurance and premiums for errors and omissions insurance, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(x) 7.2.11 all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiarysubsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) 7.2.12 all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, 7.2.13 any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiarysubsidiary of the Company, or against any trustee, director or officer of the Company or any Subsidiary subsidiary of the Company in his capacity as such for which the Company or any Subsidiary subsidiary of the Company is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) 7.2.14 all travel and related expenses of directors, officers and employees of the Company and the Manager, Manager incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary subsidiary of the Company or performing other business activities that relate to the Company or any Subsidiarysubsidiary of the Company, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment Mortgage Assets or potential investment other investments of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as reasonably determined by the Manager in good faithfaith after full disclosure to the Company, where in instances in which such expenses were not incurred solely for the benefit of the Company;
(xiv) 7.2.15 all expenses of organizing, modifying or dissolving the Company or any Subsidiary subsidiary of the Company and costs preparatory to entering into a business or activity, or costs of winding up or disposing of a business of activity of the Company or its Subsidiaries, if anysubsidiaries;
(xv) 7.2.16 all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiarysubsidiary of the Company, including, without limitation, in connection with any dividend reinvestment plan;
7.2.17 all expenses of third parties relating to communications to holders of equity securities or debt securities issued by the Company or any subsidiary of the Company and the other bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any subsidiary’s securities and reports to third parties required under any indenture to which the Company or any subsidiary of the Company is a party;
7.2.18 subject to Section 7.1, all expenses relating to any office or office facilities maintained by the Company or any subsidiary of the Company (xvi) exclusive of the office of the Manager and/or Affiliates of the Manager), including, without limitation, rent, telephone, utilities, office furniture, equipment, machinery and other office expenses for the Company’s chief financial officer and any other persons the Board of Directors authorizes the Company to hire;
7.2.19 all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, software or hardware or information technology services that is used by solely for the Company;
(xvii) 7.2.20 other than for the Manager Obligations, all other costs and expenses incurred with respect relating to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all ’s business and investment operations, including, without limitation, the costs and expenses incurred with respect to administering the Company’s incentive plansof acquiring, owning, protecting, maintaining, developing and disposing of Mortgage Assets, including, without limitation, appraisal, reporting, audit and legal fees;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and 7.2.21 other office, internal and overhead expenses of than for the Manager Obligations, and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for subject to a proportionate share of such expenses, as determined line item budget approved in advance by the Manager in good faithBoard of Directors, where such expenses were not incurred solely for the benefit of the Company; and
(xx) all other expenses actually incurred by the Manager or Manager, its Affiliates (as may be approved by the Company pursuant to the terms of this Agreement) or their respective officers, employees, representatives or agents, or any Affiliates thereof, thereof (as may be approved by the Company pursuant to the terms of this Agreement) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters).; and
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and 7.2.22 all other expenses of the Company and those incurred by the Manager on behalf or any subsidiary of the Company during each month, and shall deliver such written statement to that are not the Company within thirty (30) days after the end responsibility of each month. The Company shall pay all amounts payable to the Manager pursuant to this under Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions 7.1 of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or terminationAgreement.
Appears in 1 contract
Samples: Management Agreement (Luminent Mortgage Capital Inc)
Expenses of the Company. (a) The Manager Advisor shall be responsible for the expenses related to any and all personnel of the Manager Advisor and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Advisor or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager Advisor or its Affiliates for expenses of the Manager Advisor and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager Advisor pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall shall, without duplication, be paid by the Company and shall not be paid by the Manager Advisor or Affiliates of the ManagerAdvisor:
(i) all costs and expenses associated in connection with the formation issuance of securities of the Company and capital raising activities transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Advisor or, if provided by the Advisor’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by managers, officers, personnel and agents of the Advisor for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Advisor in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) salaries and benefits of on-site real property personnel and direct expenses relating to the operation of a property including, without limitation, on-site office and maintenance supplies, advertising and promotional costs, business licenses and permits, contractual vendor costs, including, without limitation, for landscaping and pest control, utility expenses, real estate and other taxes, property insurance, capital improvements and professional fees of third-party consultants, including, without limitation, tax consultants and architects;
(ix) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(x) compensation and expenses of the Company’s custodian and transfer agent, if any;
(xi) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixiii) all insurance costs incurred by in connection with the Company or any Subsidiaryoperation of the Company’s business except for the costs attributable to the insurance that the Advisor elects to carry for itself and its personnel;
(xiv) costs and expenses incurred in contracting with third parties;
(xv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axvi) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Advisor;
(ixxvii) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixviii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, Advisor (except as otherwise specified herein) which are reasonably necessary for the performance by the Manager Advisor of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager Advisor on behalf of the Company shall be reimbursed monthly to the ManagerAdvisor. The Manager Advisor shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager Advisor on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager Advisor pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager Advisor shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Advisory Agreement (American Realty Capital Centers, Inc.)
Expenses of the Company. (a) The Manager shall be responsible for the employment expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement Manager’s employees (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, including salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the Company’s formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, including the costs and expenses of (A) the preparation of the Company’s registration statements, (B) any and all costs and expenses of the initial public offering Initial Public Offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, including filings with the SEC, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, development, protection, maintenance, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets, including, without limitation, including costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence, asset management, securitization, property management, leasing tasks and other services that outside professionals or outside consultants perform on behalf of the Company;
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, including the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) including any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
(x) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems;
(Bxi) “all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also officers or employees of the Manager), all expenses of directors of the Company or any Subsidiary (including those directors who are also employees of the Manager), the cost of directors and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, including all quarterly and annual audit or tax fees and expenses);
(xixiii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, the Company’s directors and officers and employees of the Company and the Manager, ’s employees incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, including travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, including in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, hardware or information technology services that is used by primarily for the Company;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all expenses incurred on behalf of the Company in connection with servicing problem or delinquent loans, or special servicing;
(xxi) the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters);
(xxiii) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxxiv) all other expenses actually incurred by of the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses Subsidiary relating to the Company’s compliance with all governmental business and regulatory matters)investment operations, including the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, that are not the responsibility of the Manager under Section 8(a) of this Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five ten (510) Business Days days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The Independent Directors shall, on an annual basis, review and approve the allocation of shared expenses between the Company and the Manager. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Subject to Section 8(b)(iv), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Investment Advisory Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel; provided, however, the Company shall reimburse the Manager or its affiliates for the allocable share of the compensation, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits paid to (1) the Company’s Chief Financial Officer based on the percentage of his time spent on the Company’s affairs, (2) the Company’s General Counsel, based on the percentage of his time spent on the Company’s affairs, and (3) other corporate finance, tax, accounting, internal audit, legal risk management, operations, compliance and other non-investment personnel of the Manager and its affiliates who spend all or a portion of their time managing the Company’s affairs based upon the percentage of time devoted by such personnel to the Company’s affairs.
(b) The Subject to Section 7(e), the Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the CompanyCompany or any Subsidiary, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a8(a) of this Agreement. Without Subject to Section 7(e), without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its SubsidiariesCompany, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering any and all costs and expenses of the CompanyInitial Public Offering, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. Authority and Nasdaq the NYSE (and or any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, origination, disposition, development, modification, protection, maintenance, financing, hedging refinancing, hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets (including costs and expenses incurred for transactions that are not subsequently completed), including, without limitation, costs and expenses incurred in contracting with third parties parties, including Affiliates of the Manager, to provide such services, such as legal fees, accounting fees, consulting fees, loan servicing fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of diligence, foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence (including due diligence costs for assets that are not subsequently acquired), asset management, securitization, property management, brokerage, leasing and other services that outside professionals or outside consultants perform or otherwise would perform on the Company’s behalf and that are performed by the Manager or an Affiliate thereof, as provided in Section 2
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyany Subsidiary, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities agreements and other indebtedness of the Company and its Subsidiaries, if or any Subsidiary (including commitment fees, accounting fees, legal fees, closing and other costscosts and expenses);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents (including real estate underwriters, brokers and special servicers) engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors Manager and officers of the Company, and (3) underwriters of any securities of the Company;
(x) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the portfolio accounting systems of the Company or any Subsidiary;
(Bxi) “all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also officers or employees of the Manager), all expenses of directors of the Company or any Subsidiary (including those directors who are also employees of the Manager), the cost of directors’ and officers liability insurance and premiums for errors and omissions” insurance coverageomissions insurance, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as suchManager);
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expensesexpenses and all outsourced internal audit costs);
(xixiii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the CompanyCompany or any Subsidiary, or which the Company or any Subsidiary is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 9 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, officers and employees of the Company or any Subsidiary and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyor any Subsidiary;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiariesany Subsidiary, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site website or sites and (B) the Company’s pro rata share of associated with any computer software, hardware hardware, electronic equipment or purchased information technology services from third party vendors that is used by primarily for the CompanyCompany or any Subsidiary;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxi) rent the costs and expenses of maintaining compliance with all U.S. federal, state, local and applicable regulatory body rules and regulations;
(xxii) expenses relating to any office or office facilities, including disaster backup recovery facilities sites and facilities, maintained for the Company or any Subsidiary separate from the offices of the Manager;
(xxiii) all other expenses of the Company or any Subsidiary relating to the business and investment operations of the Company, including, without limitation, the costs and expenses)expenses of acquiring, originating, owning, protecting, maintaining, financing, refinancing, developing, modifying and disposing of investments that are not the responsibility of the Manager under Section 9(a) of this Agreement; and
(xxiv) all other expenses actually incurred by the Manager or its Affiliates or their respective managers, officers, directors, employees, members, representatives or agents, or any Affiliates thereof, that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement. In addition, the Company will be required to pay the Company’s and any Subsidiary’s pro rata portion of rent, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s and the Subsidiaries’ operations; provided. These expenses will be allocated between the Manager, howeveron the one hand, that and the Company shall only be responsible for a proportionate share and any Subsidiary, on the other hand, based on the ratio of such expenses, as determined the Company’s and the Subsidiaries’ proportion of gross assets compared to all remaining gross assets managed by the Manager in good faith, where as calculated at each fiscal quarter end; it being understood that all of such costs and expenses were not incurred solely for that are directly related to the benefit operations and business of the Company; and
(xx) all other expenses actually incurred Company or any Subsidiary shall be fully paid by the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereofSubsidiary. The Manager and the Company will modify this allocation methodology, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating subject to the Company’s compliance with all governmental and regulatory matters)Board of Directors’ approval, if the allocation becomes inequitable.
(c) Costs and expenses incurred by the Manager or an Affiliate thereof on behalf of the Company or any Subsidiary shall be reimbursed monthly no less frequently than quarterly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company or any Subsidiary during each monthfiscal quarter (or portion thereof), and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five fiscal quarter (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.portion
Appears in 1 contract
Samples: Management Agreement (AG Mortgage Investment Trust, Inc.)
Expenses of the Company. (a) The Manager XXXXX shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide overhead expenses of XXXXX necessary to perform the services required to the Company be performed pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each and all of the officers employment expenses of the Company and any directors employees of the Company who are also directorsXXXXX, officers, employees or agents of the Manager, American Capital or any of their Affiliates), including, without limitation, including salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its own costs and expenses incurred in connection with the business and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf operations of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that that, for the avoidance of doubt, the following costs and expenses shall be expenses of the Company or any Subsidiary its Subsidiaries and shall be paid by the Company and shall not be paid by the Manager or Affiliates of the ManagerXXXXX:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, including the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering any and all costs and expenses of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent equity offerings and any filing fees and costs of being maintaining the Company’s status as a public company, including, without limitation, including filings with the SEC, the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. and Nasdaq the NYSE (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, disposition, development, protection, maintenance, financing, hedging hedging, administration and ownership of the Company’s or any Subsidiary’s investmentsinvestment assets, including, without limitation, including costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair and improvement of property and premiums for insurance on property owned or leased by the Company or any Subsidiary;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all costs and expenses in connection with legal, accounting, due diligence, asset management, securitization, property management, leasing and other services that outside professionals or outside consultants perform on behalf of the Company;
(v) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and the other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, including the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(vvi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vivii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viiviii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiiix) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) including any costs to obtain liability or other insurance to indemnify (1) the Manager, (2) the directors XXXXX and officers of the Company, and (3) underwriters of any securities of the Company, ;
(Bx) “errors all costs and omissions” insurance coverageexpenses relating to the acquisition of, and maintenance and upgrades to, the Company’s portfolio accounting systems;
(Cxi) all compensation, fees and expenses of directors of the Company or any Subsidiary required to be paid by the Company under the Company’s director compensation policy, the cost of directors and officers liability insurance and any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
officers (ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding including those directors who are also directors, officers, employees or agents of American Capital or any of its AffiliatesXXXXX), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(xxii) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, including all quarterly and annual audit or tax fees and expenses);
(xixiii) subject to Section 8 below, all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiixiv) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiiixv) all travel and related expenses of directors, the Company’s officers and TREIT’s employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities activities, at the Company’s request, that relate to the Company or any Subsidiary, including, without limitations, including travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment asset or potential investment asset of the Company; provided, however, that if any such expenses are incurred for the benefit of both the Company and XXXXX and its Affiliates, the Company shall only be responsible for a its proportionate share of such expenses, as determined by the Manager Company in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xivxvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xvxvii) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, including in connection with any dividend reinvestment plan;
(xvixviii) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of associated with any computer software, hardware or information technology services that is used by of the Company’s;
(xviixix) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that if any such expenses are incurred for the benefit of both the Company and XXXXX and its Affiliates, the Company shall only be responsible for a its proportionate share of such expenses, as determined by the Manager Company in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviiixx) all expenses incurred on behalf of the Company in connection with servicing problem or delinquent loans, or special servicing;
(xxi) the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xixxxii) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager Company and its Affiliates required for the Company’s operationsSubsidiaries; provided, however, that if any such expenses are incurred for the benefit of both the Company and XXXXX and its Affiliates (other than rent for the Company’s New York City offices, which up to four (4) employees of XXXXX who are providing services to the Company, or a higher number of employees of XXXXX upon approval of the Company’s Chief Executive Officer if there is space that is not being used by the Company’s employees or as approved by an Independent Committee, may utilize from time to time without allocation of a portion of such rent), the Company shall only be responsible for a its proportionate share of such expenses, as determined by the Manager Company in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxxiii) all other expenses actually incurred by of the Manager or its Affiliates or their respective officers, employees, representatives or agents, Company or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses Subsidiary relating to the Company’s compliance with all governmental business and regulatory matters)operations, including the costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of assets.
(c) Costs An Independent Committee shall, on a quarterly basis, review and approve the allocation of shared expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of between the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager XXXXX pursuant to this Section 7(cSubsections 7(b)(xv), 7(b)(xix) within five (5and 7(b)(xxii) Business Days after above and the receipt of the written statement without demand, deduction, offset or delay. Cost Company’s cost and expense reimbursement to the Manager XXXXX shall be subject to adjustment at the end of each calendar year in connection with the annual audit quarter as a result of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or terminationreview.
Appears in 1 contract
Expenses of the Company. (a) The Except as set forth in Section 7(b)(xx), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Overhead Sharing Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Bimini or any of their Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Subject to Section 7(c) below, the Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, including its pro rata share of certain overhead expenses incurred by the Manager or its Affiliates related to the performances of the services pursuant to this Agreement, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without Subject to Section 7(c) below, without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s private placement memoranda and registration statements, (B) the initial all private and public offering offerings of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq the OTC Bulletin Board (and any other exchange or over-the-counter market), among other such entitiesentities and (E) any fees and expenses associated with the Company’s initial qualification as a REIT;
(ii) all costs and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital the Manager or any of its Affiliates), and and, subject to clause (xiii) below, all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitationslimitation, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share share, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as of the first day of each month), of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive and benefit plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate its pro rata share of such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s assets under management and Bimini’s assets (measured as determined by of the Manager in good faithfirst day of each month), where such expenses were not incurred solely for the benefit of the Company;
(xx) the Company’s allocable share of the compensation of its Chief Financial Officer, including, without limitation, annual base salary, bonus, any related withholding taxes and employee benefits, based on the percentage of time spent on the Company’s affairs; and
(xxxxi) all other expenses (other than those described in Section 7(a) above) actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters). For the avoidance of doubt, payment for all services provided to the Company by AVM, L.P. (including repurchase agreement trading, clearing and administrative services) shall be made by the Company directly to AVM, L.P.
(c) The costs and expenses referred to in Section 7(b)(xvi), Section 7(b)(xvii), Section 7(b)(xix) and Section 7(b)(xx) to the extent incurred by the Manager or its Affiliates on behalf of the Company, shall not become reimbursable costs and expenses until the date on which the Company’s aggregate stockholders’ equity, determined on a monthly basis and adjusted to exclude the effect of any unrealized gains or losses included in either retained earnings or other comprehensive income (loss), each computed in accordance with GAAP, is equal to or in excess of $100 million.
(cd) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c7(d) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. In addition, the Manager agrees to pay for the following expenses:
(i) The Manager agrees to pay the underwriters of the Initial Public Offering the underwriting discount equal to $0.80 per share of Common Stock sold in the Initial Public Offering;
(ii) The Manager agrees to pay the placement agent of the Unit Private Placement the placement agent equal to $0.60 per Unit sold in the Unit Private Placement (other than any Units sold to investors with which the Manager has had a pre-existing business relationship); and
(iii) The Manager agrees to pay any other expenses in excess of $1.2 million, which shall be borne by the Company, (excluding the amounts described in immediately preceding clauses (i) and (ii)) incurred in connection with the organization of the Company and/or the Initial Public Offering or Unit Private Placement.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this AgreementAgreement and provided that any such costs and expenses borne by the Manager and reimbursed by the Company are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities of transaction costs incident to the Company acquisition, disposition and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation financing of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesSubsidiaries’ investments;
(ii) all costs of legal, tax, accounting, consulting, auditing, administrative and other similar services rendered for us by providers retained by the Manager or, if provided by the Manager’s personnel, in amounts that are no greater than those that would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection of the Company’s directors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the acquisitionestablishment and maintenance of any of the Company’s credit facilities, dispositionother financing arrangements, financingor other indebtedness of the Company’s (including commitment fees, hedging accounting fees, legal fees, closing and ownership other similar costs) or any of the Company’s securities offerings;
(v) expenses connected with communications to holders of the Company’s or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration securities and other fees bookkeeping and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary and other third party services utilized clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies agencies, including, without limitation, all costs of preparing and filing required reports with the SEC, the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by directors, officers, personnel and agents of the Manager for travel solely on the Company’s behalf and other out-of-pocket expenses incurred by directors, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any of the Company’s repurchase agreements, securitizations or any of the Company’s securities offerings;
(viii) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(ix) compensation and expenses of the Company’s custodian and transfer agent, if any;
(x) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees;
(xii) all insurance costs incurred in connection with the operation of the Company’s business, except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with the Custodian and other third parties, including Affiliates of the Manager for the servicing and special servicing of the Company’s and any Subsidiaries’ assets;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the SEC)costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any costs office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained by the Manager or its Affiliates for the Company or the Company’s or any Subsidiaries’ investments separate from the office or offices of computer services the Manager;
(xvi) expenses connected with the payments of interest, dividends or distributions in connection with this function, cash or any other form authorized or caused to be made by the cost Board to or on account of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anysecurities, including, without limitation, principal, interest and the costs associated in connection with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities dividend reinvestment plan;
(xvii) expenses related to litigation and other indebtedness of legal matters involving the Company and its any Subsidiaries, if any (including commitment fees, legal fees, closing the fees and other costs)expenses of outside counsel;
(vixviii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viii) all insurance costs incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, which (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed in cash monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has previously been incurred or are incurred in connection with such expiration or termination.five
Appears in 1 contract
Samples: Management Agreement (Western Asset Mortgage Capital Corp)
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, including salaries, bonus and other wages, payroll taxes and taxes, the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel. For the avoidance of doubt, any equity incentive plan of PAC or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 8(a).
(b) The Company shall pay (or cause to be paid) all of its the costs and expenses of each Company Entity and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Companyany Company Entity, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a8(a) of this Agreementand subject to Section 7(g). Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary Entities shall be paid (or caused to be paid) by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated Acquisition Expenses incurred in connection with the formation selection and capital raising activities acquisition of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesInvestments;
(ii) all costs General and Administrative Expenses;
(iii) expenses in connection with the acquisition, disposition, financing, hedging and ownership issuance of securities of the Company’s or , any Subsidiary’s investmentsFinancing Transaction and other costs incident to the acquisition, including, without limitation, costs disposition and expenses incurred in contracting with third parties to provide such services, such as legal fees, accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty feesfinancing of the Investments;
(iiiiv) all costs of legal, audittax, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration auditing and other fees and chargessimilar services rendered to the Company by providers retained by the Manager, printingor, engraving and other expenses and taxes incurred if provided by the Manager’s personnel, in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Company’s amounts which are no greater than those which would be payable to outside professionals or any Subsidiary’s equity securities or debt securitiesconsultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(ivv) all the compensation and expenses relating of the Directors and the cost of liability insurance to indemnify the Company and its officers and the Directors;
(vi) expenses connected with communications to holders of equity the securities or debt securities issued by the of any Company or any Subsidiary Entity and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing PAC’s annual report to its stockholders or its Subsidiariesthe Operating Partnership’s partners, if anyas applicable, includingand proxy materials with respect to any meeting of PAC’s stockholders or the Operating Partnership’s partners, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs);
(vi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonas applicable;
(vii) all fees paid to and expenses of costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party advisors and independent contractors, consultants, managers and other agents engaged by vendors that is used for the Company or any Subsidiary or by the Manager for the account of the Company or any SubsidiaryEntities;
(viii) all insurance costs expenses incurred by the Company or any Subsidiary, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers;
(ix) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directorsmanagers, officers, employees or personnel and agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to Manager for travel on the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert behalf and other fees out-of-pocket expenses incurred by managers, officers, personnel and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director or officer agents of the Company or any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred Manager in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment an Investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment planFinancing Transaction;
(xviix) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided;
(x) the costs of maintaining compliance with all federal, however, that state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees;
(xii) all insurance costs incurred in connection with the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xviiixiii) all costs and expenses incurred in contracting with respect third parties;
(xiv) all other costs and expenses relating to administering the Company’s incentive plansbusiness and investment operations, including the costs and expenses of owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xixxv) rent (expenses relating to any office(s) or office facilities, including disaster backup recovery facilities costs sites and expenses)facilities, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses maintained for the Company Entities or the Investments of the Manager and its Affiliates required for Company separate from the Company’s operations; providedoffice or offices of the Manager;
(xvi) expenses connected with the payments of interest, howeverdividends or distributions in cash or any other form authorized or caused to be made by the Board, that the Operating Partnership or other governing body to or on account of holders of the securities of any Company shall only be responsible for a proportionate share Entity, including in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against any Company Entity, or against any trustee, director, partner, member or officer of such expensesCompany Entity in his capacity as such for which such Company Entity is required to indemnify such trustee, as determined director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Companyany court or governmental agency; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specified herein) which are reasonably necessary or advisable for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) 30 days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c8(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (Preferred Apartment Communities Inc)
Expenses of the Company. (a) The Manager Advisor shall be responsible for the expenses related to any and all personnel of the Manager Advisor and its Affiliates who provide services to the Manager or the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Advisor or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager Advisor or its Affiliates for expenses of the Manager Advisor and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager Advisor pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager Advisor or Affiliates of the ManagerAdvisor:
(i) all costs and Acquisition Expenses;
(ii) expenses associated in connection with the formation issuance of securities of the Company and capital raising activities transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries;
(iii) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Advisor or, if anyprovided by the Advisor’s personnel, including, without limitation, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iv) the costs compensation and expenses of (A) the preparation of the Company’s registration statements, (B) directors and the initial public offering cost of liability insurance to indemnify the Company, (C) the original incorporation ’s directors and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entitiesofficers;
(iiv) all costs and expenses in connection associated with the acquisition, disposition, financing, hedging establishment and ownership maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiaryother indebtedness of the Company’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees closing and guaranty feesother similar costs) or any of our securities offerings;
(iiivi) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration and other fees and charges, printing, engraving and other expenses and taxes incurred in connection connected with the issuance, distribution, transfer, registration and stock exchange listing communications to holders of the Company’s or any Subsidiary’s equity securities or debt securities;
(iv) all expenses relating to communications to holders of equity securities or debt securities issued by the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies agencies, including, without limitation, all costs of preparing and filing required reports with the SEC, the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with such listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vii) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(viii) expenses incurred by managers, officers, personnel and agents of the Advisor for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Advisor in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any of the Company’s securitizations or any of the Company’s securities offerings;
(ix) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(x) compensation and expenses of the Company’s custodian and transfer agent, if any;
(xi) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xii) all taxes and license fees;
(xiii) all insurance costs incurred in connection with the operation of the Company’s business except for the costs attributable to the insurance that the Advisor elects to carry for itself and its personnel;
(xiv) all due diligence fees and expenses;
(xv) costs of appraisals and engineering, environmental and zoning reports, title insurance premiums and other closing costs;
(xvi) non-refundable option payments on properties not acquired;
(xvii) costs and expenses incurred in contracting with third parties;
(xviii) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xix) expenses relating to any office(s) or office facilities, including, but not limited to, disaster backup recovery sites and facilities, maintained for the Company or its Subsidiaries, if any, including, without limitation, principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness investments of the Company and its Subsidiaries, if any (including commitment fees, legal fees, closing and other costs)separate from the office or offices of the Advisor;
(vixx) all taxes and license fees applicable to expenses connected with the Company payments of interest, dividends or distributions in cash or any Subsidiary, including interest and penalties thereon;
(vii) all fees paid other form authorized or caused to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged be made by the Company Board to or any Subsidiary or by the Manager for the on account of holders of the Company Company’s securities or any Subsidiary;
(viii) all insurance costs incurred by of the Company or any SubsidiarySubsidiaries, including, without limitation, the cost of obtaining and maintaining (A) liability or other insurance to indemnify (1) the Manager, (2) the directors and officers of the Company, and (3) underwriters of in connection with any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officersdividend reinvestment plan;
(ixxxi) all compensation and fees paid to directors of the Company or any Subsidiary (excluding those directors who are also directors, officers, employees or agents of American Capital or any of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including, without limitation, all quarterly and annual audit or tax fees and expenses);
(xi) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxxii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, Advisor (except as otherwise specified herein) which are reasonably necessary for the performance by the Manager Advisor of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager Advisor on behalf of the Company shall be reimbursed monthly to the ManagerAdvisor. The Manager Advisor shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager Advisor on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager Advisor pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager Advisor shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Acquisition and Capital Services Agreement (American Realty Capital Properties, Inc.)
Expenses of the Company. (a) The Subject to Section 7(b), the Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Agreement otherwise (including each of the officers of the Company and any directors of the Company who are also directors, officers, officers or employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, including salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnelpersonnel (“Manager Expenses”); provided, however, that the Company shall reimburse the Manager for the Company’s allocable share of the compensation (including annual base salary, bonus, any related withholding taxes and employee benefits) paid to (1) personnel of the Manager serving as the Company’s Chief Financial Officer based on the percentage of his or her time spent managing the Company’s affairs and (2) other corporate finance, tax, accounting, internal audit, legal risk management, operations, compliance and other non-investment personnel of the Manager or its Affiliates who spend all or a portion of their time managing the Company’s affairs (the Company’s share of such costs shall be based on the percentage of time devoted by such personnel to the affairs of the Company and its Subsidiaries).
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for documented costs and expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the other than Manager pursuant to Section 7(a) of this AgreementExpenses. Without limiting the generality of the foregoingforegoing and in addition to the items described in the proviso to Section 7(a), it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated with the formation and capital raising activities of the Company and its Subsidiariesfees, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the issuance and transaction costs incident to the acquisition, dispositionnegotiation, financingstructuring, trading, settling, disposition and financing of the investments of the Company and its Subsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and ownership settlement charges, forfeited deposits, and other investment costs, fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(ii) fees, costs, and expenses of legal, tax, accounting, consulting, auditing (including internal audit), finance, administrative, investment banking, capital market and other similar services rendered to the Company (including, where the context requires, through one or more third parties and/or Affiliates of the Manager) or, if provided by the Manager’s personnel or personnel of Affiliates of the Manager, in accordance with Section 2(e) hereof;
(iii) the compensation and expenses of the Company’s directors (excluding those directors who are officers or any Subsidiaryemployees of the Manager or its Affiliates) and the cost of “errors and omissions” and liability insurance to indemnify the Company’s investmentsdirectors and officers;
(iv) interest and fees and expenses arising out of borrowings made by the Company, including, without limitationbut not limited to, costs associated with the establishment and expenses incurred in contracting with third parties to provide such servicesmaintenance of any of the Company’s credit facilities, such as legal other financing facilities or arrangements or other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (includingagencies, without limitationincluding all costs of preparing and filing required reports with the SEC, the SEC), including costs payable by the Company to any costs of computer services transfer agent and registrar in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders listing and/or trading of the Company’s or securities on any Subsidiary’s securities and exchange, the cost of any reports to third parties required under any indenture to which fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders and any other reports or any Subsidiary is a partyrelated statements;
(vvi) all the Company’s allocable share of costs and expenses of money borrowed by the Company or its Subsidiaries, if anyassociated with technology-related expenses, including, without limitation, principalany computer software or hardware, interest electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Manager, technology service providers and related software/hardware utilized in connection with the costs associated Company’s investment and operational activities;
(vii) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of an investment or the establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its SubsidiariesCompany’s financing facilities or arrangements, if securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) the Company’s allocable share of costs and expenses incurred with respect to market information systems and publications, research publications and materials, including, without limitation, news research and quotation equipment and services;
(ix) the costs and expenses relating to ongoing regulatory compliance matters and regulatory reporting obligations relating to the Company’s activities;
(x) the costs of any litigation involving the Company or its assets and the amount of any judgments or settlements paid in connection therewith, directors and officers, liability or other insurance and indemnification or extraordinary expense or liability relating to the affairs of the Company;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company operation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) the Company’s allocable share of costs and expenses incurred in contracting with third parties, in whole or any Subsidiaryin part, on the Company’s behalf;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any director, trustee, director partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such director, trustee, director partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses cost of the Manager and its Affiliates required any equity awards for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit directors and/or executive officers of the Company; and
(xxxix) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specifically excluded herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and The Manager may, at its option, elect not to seek reimbursement for certain expenses incurred by the Manager on behalf during a given quarterly period, which determination shall not be deemed to construe a waiver of the Company shall be reimbursed monthly to the Manager. reimbursement for similar expenses in future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company and those incurred during each fiscal quarter to be reimbursed by the Manager on behalf of the Company during each monthCompany, and shall use commercially reasonable efforts to deliver such written statement the same to the Company within thirty forty-five (3045) days after following the end of each month. The Company shall pay all amounts payable the applicable fiscal quarter (subject to the Manager pursuant to this Section 7(c) within five (5) Business Days after reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the written Company within ten (10) days following delivery of the expense statement without demandby the Manager; provided, deduction, that such payments may be offset or delayby the Manager against amounts due to the Company from the Manager. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. .
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) The Manager shall be responsible for the expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or to the Manager pursuant to the Administrative Services Investment Advisory Agreement (including including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers, employees or agents of the Manager, American Capital Manager or any of their its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel.
(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) all costs and expenses associated in connection with the formation issuance and capital raising activities transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries, if any, including, without limitation, the costs and expenses of (A) the preparation of the Company’s registration statements, (B) the initial public offering of the Company, (C) the original incorporation and initial organization of the Company, and (D) any subsequent offerings and any filing fees and costs of being a public company, including, without limitation, filings with the SEC, the Financial Industry Regulatory Authority, Inc. and Nasdaq (and any other exchange or over-the-counter market), among other such entities;
(ii) all costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager (including, but not limited to, Xxxxxxx, Xxxxxxxxxxx & Xxxxxxxx, LLC) or, if provided by the Manager’s personnel, in amounts which are no greater than those which would be payable to outside professionals or consultants engaged to perform such services pursuant to agreements negotiated on an arm’s-length basis;
(iii) the compensation and expenses in connection with the acquisition, disposition, financing, hedging and ownership of the Company’s directors and the cost of liability insurance to indemnify the Company’s directors and officers;
(iv) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or any Subsidiary’s investments, including, without limitation, costs and expenses incurred in contracting with third parties to provide such services, such as legal other indebtedness of the Company (including commitment fees, accounting fees, consulting legal fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage fees and guaranty fees;
(iii) all legal, audit, accounting, consulting, brokerage, listing, filing, custodian, transfer agent, rating agency, registration closing and other fees and charges, printing, engraving and other expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing similar costs) or any of the Company’s or any Subsidiary’s equity securities or debt securitiesofferings;
(ivv) all expenses relating to connected with communications to holders of equity the Company’s securities or debt securities issued by of the Company or any Subsidiary Subsidiaries and other third party services utilized bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies (including, without limitation, the SEC), including any costs of computer services in connection with this function, the cost of printing and mailing certificates for such securities and proxy solicitation materials and reports to holders of the Company’s or any Subsidiary’s securities and the cost of any reports to third parties required under any indenture to which the Company or any Subsidiary is a party;
(v) all costs and expenses of money borrowed by the Company or its Subsidiaries, if anyagencies, including, without limitation, principalall costs of preparing and filing required reports with the SEC, interest the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Company’s stockholders and proxy materials with respect to any meeting of the Company’s stockholders;
(vi) costs associated with any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors that is used for the Company;
(vii) expenses incurred by managers, officers, personnel and agents of the Manager for travel on the Company’s behalf and other out-of-pocket expenses incurred by managers, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an investment or establishment and maintenance of any credit facilities, warehouse loans, repurchase facilities and other indebtedness of the Company and its Subsidiaries, if Company’s securitizations or any (including commitment fees, legal fees, closing and other costs)of the Company’s securities offerings;
(viviii) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(ix) compensation and expenses of the Company’s custodian and transfer agent, if any;
(x) the costs of maintaining compliance with all federal, state and local rules and regulations or any other regulatory agency;
(xi) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereonfees;
(vii) all fees paid to and expenses of third-party advisors and independent contractors, consultants, managers and other agents engaged by the Company or any Subsidiary or by the Manager for the account of the Company or any Subsidiary;
(viiixii) all insurance costs incurred by in connection with the Company or any Subsidiaryoperation of the Company’s business except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(xiii) costs and expenses incurred in contracting with third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the cost costs and expenses of obtaining acquiring, owning, protecting, maintaining, developing and maintaining disposing of investments, including appraisal, reporting, audit and legal fees;
(Axv) liability expenses relating to any office(s) or other insurance to indemnify (1) the Manageroffice facilities, (2) the directors including, but not limited to, disaster backup recovery sites and officers of the Companyfacilities, and (3) underwriters of any securities of the Company, (B) “errors and omissions” insurance coverage, and (C) any other insurance deemed necessary or advisable by the Board of Directors maintained for the benefit Company or the investments of the Company and its directors and officersSubsidiaries separate from the office or offices of the Manager;
(ixxvi) all compensation and fees paid to directors expenses connected with the payments of the Company interest, dividends or distributions in cash or any Subsidiary (excluding those directors who are also directors, officers, employees other form authorized or agents caused to be made by the Board to or on account of American Capital or any holders of its Affiliates), and all expenses of all directors of the Company or any Subsidiary incurred in their capacity as such;
(x) all third-party legal, accounting and auditing fees and expenses and other similar services relating to the Company’s securities or any Subsidiary’s operations (of the Subsidiaries, including, without limitation, all quarterly and annual audit or tax fees and expenses)in connection with any dividend reinvestment plan;
(xixvii) all third-party legal, expert and other fees and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xii) subject to Section 8 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or against any trustee, director director, partner, member or officer of the Company or of any Subsidiary in his capacity as such for which the Company or any Subsidiary is required to indemnify such trustee, director director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xiii) all travel and related expenses of directors, officers and employees of the Company and the Manager, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or any Subsidiary or performing other business activities that relate to the Company or any Subsidiary, including, without limitations, travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xiv) all expenses of organizing, modifying or dissolving the Company or any Subsidiary and costs preparatory to entering into a business or activity, or of winding up or disposing of a business activity of the Company or its Subsidiaries, if any;
(xv) all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company or any Subsidiary, including, without limitation, in connection with any dividend reinvestment plan;
(xvi) all costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s pro rata share of any computer software, hardware or information technology services that is used by the Company;
(xvii) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company;
(xviii) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xix) rent (including disaster recovery facilities costs and expenses), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its Affiliates required for the Company’s operations; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Manager in good faith, where such expenses were not incurred solely for the benefit of the Company; and
(xxxviii) all other expenses actually incurred by the Manager or its Affiliates or their respective officers, employees, representatives or agents, or any Affiliates thereof, (except as otherwise specified herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement (including, without limitation, any fees or expenses relating to the Company’s compliance with all governmental and regulatory matters)Agreement.
(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the costs and expenses of the Company and those incurred by the Manager on behalf of the Company during each month, and shall deliver such written statement to the Company within thirty (30) days after the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this Section 7(c) within five (5) Business Days after the receipt of the written statement without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company. The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses has have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Samples: Management Agreement (Starwood Property Trust, Inc.)
