Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“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 to the extent incurred on behalf of the Company that are Company Expenses in accordance with this Agreement. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense. (c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 incurred during each calendar month to be reimbursed by the Company, and shall use commercially reasonable efforts to deliver the same to the Company within five (5) days following the end of the applicable calendar month (subject to reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager. (e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 7 contracts
Samples: Management Agreement (KKR Private Equity Conglomerate LLC), Management Agreement (KKR Infrastructure Conglomerate LLC), Management Agreement (KKR Private Equity Conglomerate LLC)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”)personnel.
(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 to the extent incurred on behalf of the Company Company, excepting only those expenses that are Company Expenses in accordance with specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. For Without limiting the avoidance generality of doubtthe 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) Acquisition Expenses; provided, however, that Acquisition Expenses are not paid pursuant to this Agreement shall be without duplication with any “Acquisition Expenses” paid pursuant to that certain Acquisition and Capital Services Agreement, dated as of September 6, 2011, by and between the Company Expenses. The and AR Capital, LLC (formerly known as American Realty Capital II, LLC);
(ii) expenses in connection with the issuance of securities of the Company and 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 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;
(iv) the compensation and expenses of the Company’s directors and the cost of liability insurance to indemnify the Company’s directors and officers;
(v) costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of the Company’s securities offerings;
(vi) expenses connected with communications to holders of the Company’s securities or of the Subsidiaries and 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, 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 sole listing, costs of preparing, printing and absolute discretionmailing 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, shall determine 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 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 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 Manager 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 costs and expenses of acquiring, owning, protecting, maintaining, developing and disposing of investments, including appraisal, reporting, audit and legal fees;
(xvi) 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 the investments of the Company and its Subsidiaries separate from the office or offices of the Manager;
(xvii) 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, without limitation, in connection with any dividend reinvestment plan;
(xviii) any judgment or settlement of pending or threatened proceedings (whether a cost civil, criminal or expense otherwise) against the Company or any Subsidiary, or against any 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 a required to indemnify such trustee, director, partner, member or officer by any court or governmental agency; and
(xix) all other expenses actually incurred by the Manager Expense or Company Expense(except as otherwise specified herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement.
(c) The Costs and expenses incurred by the Manager may, at its option, elect not on behalf of the Company shall be reimbursed monthly to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, in future periods.
(d) the Manager. The Manager shall prepare a written expense 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 calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same 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) days following 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 applicable calendar month (subject to reasonable delays resulting from delays in the receipt annual audit of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 4 contracts
Samples: Management Agreement (American Realty Capital Properties, Inc.), Merger Agreement (American Realty Capital Trust III, Inc.), Acquisition and Capital Services Agreement and Management Agreement (American Realty Capital Properties, Inc.)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, including each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and taxes, the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”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 documented costs and expenses of the Manager and its Affiliates incurred on behalf of any Company Entity, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a) and 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 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) Acquisition Expenses incurred in connection with the selection and acquisition of Investments;
(ii) General and Administrative Expenses Fee;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the extent acquisition, disposition and financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered to the Company by providers retained by the Manager and approved by PAC, 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 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 the securities of any Company Entity and 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 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 PAC’s annual report to its stockholders or the Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of PAC’s stockholders or the Operating Partnership’s partners, as applicable;
(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 Entities;
(viii) 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 in connection with any Financing Transaction;
(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) 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 third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including the costs and expenses of owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company Entities or the Investments of the Company separate from the office or offices of the Manager;
(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, the Operating Partnership or other governing body to or on account of holders of the securities of any Company 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 Company Entity in his capacity as such for which such Company Entity is required to indemnify such trustee, director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by any court or governmental agency; and
(xviii) all other expenses actually incurred by the Manager (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.
(c) Costs and expenses incurred by the Manager on behalf of the Company that are Company Expenses in accordance with this Agreementshall be reimbursed monthly to the Manager. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 by the Manager on behalf of the Company during each calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same such written statement to the Company within five (5) 30 days following after the end of each month. The Company shall pay all amounts payable to the applicable calendar month (subject Manager pursuant to reasonable delays resulting from delays in this Section 8(c) within five Business Days after the receipt of information)the written statement without demand, deduction, offset or delay. The amounts payable for such cost Cost and expense reimbursement to the Manager shall be paid by subject to adjustment at the end of each calendar year in connection with the annual audit of the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 4 contracts
Samples: Management Agreement (Preferred Apartment Communities Inc), Management Agreement (Preferred Apartment Communities Inc), Management Agreement (Preferred Apartment Communities Inc)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, including each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and taxes, the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”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 documented costs and expenses of the Manager and its Affiliates incurred on behalf of any Company Entity, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a) and 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 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) Acquisition Expenses incurred in connection with the selection and acquisition of Investments;
(ii) General and Administrative Expenses Fee;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the extent acquisition, disposition and financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered to 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 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 the securities of any Company Entity and 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 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 PAC’s annual report to its stockholders or the Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of PAC’s stockholders or the Operating Partnership’s partners, as applicable;
(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 Entities;
(viii) 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 in connection with any Financing Transaction;
(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) 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 third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including the costs and expenses of owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company Entities or the Investments of the Company separate from the office or offices of the Manager;
(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, the Operating Partnership or other governing body to or on account of holders of the securities of any Company 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 Company Entity in his capacity as such for which such Company Entity is required to indemnify such trustee, director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by any court or governmental agency; and
(xviii) all other expenses actually incurred by the Manager (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.
(c) Costs and expenses incurred by the Manager on behalf of the Company that are Company Expenses in accordance with this Agreementshall be reimbursed monthly to the Manager. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 by the Manager on behalf of the Company during each calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same such written statement to the Company within five (5) 30 days following after the end of each month. The Company shall pay all amounts payable to the applicable calendar month (subject Manager pursuant to reasonable delays resulting from delays in this Section 8(c) within five Business Days after the receipt of information)the written statement without demand, deduction, offset or delay. The amounts payable for such cost Cost and expense reimbursement to the Manager shall be paid by subject to adjustment at the end of each calendar year in connection with the annual audit of the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 3 contracts
Samples: Management Agreement (Preferred Apartment Communities Inc), Management Agreement (Preferred Apartment Communities Inc), Management Agreement (Preferred Apartment Communities Inc)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, including each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and taxes, the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”personnel. For the avoidance of doubt, any equity incentive plan of the Trust 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 documented costs and expenses of the Manager and its Affiliates incurred on behalf of any Company Entity, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a). Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company 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) Acquisition Expenses incurred in connection with the selection and acquisition of Investments;
(ii) fees for asset management or property management services rendered to the extent Company Entities by providers retained by Manager (including Affiliates of Manager);
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, disposition and financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered to 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 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 the securities of any Company Entity and 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 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 Trust’s annual report to its stockholders or the Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of the Trust’s stockholders or the Operating Partnership’s partners, as applicable;
(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 Entities;
(viii) 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 in connection with any Financing Transaction;
(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) 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 third parties;
(xiv) all other costs and expenses relating to the Company’s business and investment operations, including the costs and expenses of owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company Entities or the Investments of the Company separate from the office or offices of the Manager;
(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, the Operating Partnership or other governing body to or on account of holders of the securities of any Company 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 Company Entity in his capacity as such for which such Company Entity is required to indemnify such trustee, director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by any court or governmental agency; and
(xviii) all other expenses actually incurred by the Manager (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.
(c) Costs and expenses incurred by the Manager on behalf of the Company that are Company Expenses in accordance with this Agreementshall be reimbursed monthly to the Manager. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 by the Manager on behalf of the Company during each calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same such written statement to the Company within five (5) 30 days following after the end of each month. The Company shall pay all amounts payable to the applicable calendar month (subject Manager pursuant to reasonable delays resulting from delays in this Section 8(c) within five Business Days after the receipt of information)the written statement without demand, deduction, offset or delay. The amounts payable for such cost Cost and expense reimbursement to the Manager shall be paid by subject to adjustment at the end of each calendar year in connection with the annual audit of the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Management Agreement (Wheeler Real Estate Investment Trust, Inc.), Management Agreement (Wheeler Real Estate Investment Trust, Inc.)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”).
(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 incurred on its behalf (collectively, the “Expenses”); provided that the Company shall use its commercially reasonable best efforts to pay all Expenses directly and in those instances where the Expenses must be incurred by the Manager on the Company’s behalf, such Expenses shall be expensed in the Company’s financial statements as the type of expense for which the reimbursement relates (e.g. in the event the Manager procures insurance on behalf of the Company, the Company shall expense the reimbursement to the Manager as an insurance expense). Expenses include all 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 issuance and transaction costs incident to the acquisitions, disposition and financing of Investments;
(b) travel and other out-of-pocket expenses incurred by managers, officers, employees and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition, or asset management of an Investment;
(c) costs of legal, accounting, tax, auditing, administrative and other services rendered for the Company by providers retained by the Manager or, if provided by the Manager’s employees, 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;
(d) the compensation and expenses of the Independent Directors (as defined in the FIG Management Agreement) of the Manager and its Affiliates required to be maintained pursuant to the extent incurred on behalf FIG Management Agreement and the cost of liability insurance to indemnify the Company’s directors and officers;
(e) compensation and expenses of the Company’s custodian and transfer agent, if any;
(f) costs associated with the establishment and maintenance of any credit facilities and other indebtedness of the Company that are Company Expenses in accordance with this Agreement. For (including commitment fees, legal fees, closing and other costs) or any securities offerings of the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.Company;
(cg) The Manager may, at its option, elect not to seek reimbursement costs associated with any computer software or hardware that is used solely for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, in future periods.the Company;
(dh) The Manager shall prepare a written expense statement in reasonable detail documenting all other costs and expenses relating to the Company’s business and investment operations, including, without limitation, the costs and expenses of the Company incurred during each calendar month to be reimbursed by the Companyacquiring, owning, protecting, maintaining, developing, operating and shall use commercially reasonable efforts to deliver the same to the Company within five (5) days following the end disposing of the applicable calendar month (subject to reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost Investments, including appraisal, reporting, audit and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.legal fees;
(ei) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are 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 employees;
(j) expenses relating to any office or office facilities maintained for the Company or Investments separate from the office or offices of the Manager;
(k) expenses connected with the payments of interest, dividends or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of the holders of securities of the Company or its Subsidiaries, including, without limitation, in connection with any dividend reinvestment plan;
(l) expenses connected with communications to holders of securities of the Company or its Subsidiaries and other bookkeeping and clerical work necessary in maintaining relations with holders of such expiration securities and in complying with the continuous reporting and other requirements of governmental bodies or terminationagencies, including, without limitation, all costs of preparing and filing required reports with the Securities and Exchange Commission, the costs payable by the Company to any transfer agent and registrar in connection with the listing and/or trading of the Company’s stock 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 its shareholders and proxy materials with respect to any meeting of the shareholders of the Company;
(m) all other expenses actually incurred by the Manager which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement; and
(n) Without regard to the amount of compensation received under this Agreement by the Manager, the Manager shall bear the following expenses, except as expressly set forth otherwise herein: (i) wages and salaries of the Manager’s officers and employees; (ii) rent attributable to the space occupied by the Manager; and (iii) all other “overhead” expenses of the Manager.
Appears in 2 contracts
Samples: Management Agreement (New Media Investment Group Inc.), Management Agreement (New Media Investment Group Inc.)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“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 to the extent incurred on behalf of the Company that are Company Expenses in accordance with this Agreement. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 incurred during each calendar month to be reimbursed by the Company, and shall use commercially reasonable efforts to deliver the same to the Company within five (5) days following the end of the applicable calendar month (subject to reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) Any intercompany sale, charge, reimbursement, allocation, or the like shall be documented on an invoice containing separately stated line items with a description of the good/service along with its associated cost and any mark-ups or price adjustments relative to the original price(s) paid to the third-party vendor. If the transaction is a “sale” for sales and use tax purposes, the seller and the buyer shall analyze it for proper payment of sales/use tax. If either tax is due, either the sales tax shall be collected and remitted or the use tax shall be accrued and remitted to the state (provided the party has an active sales tax account). Such invoices shall be retained along with any other documents as proof tax was sent to the state.
(f) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Management Agreement (EQT Infrastructure Co LLC), Management Agreement (EQT Private Equity Co LLC)
Expenses of the Company. (a) Subject to Section 7(b) and except 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 in therein, which costs shall be the definition expense of Company Expensesthe 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates)Agreement, including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel personnel; provided, however, that the Manager shall not be responsible for any such expenses payable subsequent to the Distribution Date to the extent (“Manager Expenses”)and only to such extent) that such expenses were incurred or otherwise attributable to a time period preceding the Distribution Date. For the avoidance of doubt, any Equity Incentive Plan of BHM or the Operating Partnership in which any person referred to above participates shall be excluded from the operation of this Section 7(a) and will thus not be an expense of the Manager.
(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 costs and expenses of the Manager and its Affiliates to the extent 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 that Entities shall be paid by the Company and shall not be paid by the Manager or Affiliates of the Manager:
(i) Acquisition Expenses incurred in connection with the selection and acquisition of Investments;
(ii) general and administrative expenses of the Company Entities;
(iii) expenses incurred in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the acquisition, development, redevelopment, construction, repositioning, leasing, disposition and 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 Company Expenses in accordance with this Agreementno 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, any Equity Incentive Plan of BHM or the Operating Partnership in which any person referred to in Section 7(a) above participates shall be included in the operation of this Section 7(b)(iv);
(v) the compensation and expenses of BHM’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 other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of BHM’s securities offerings;
(vii) expenses connected with communications to holders of the securities of any Company Entity and 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, 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 BHM’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 BHM’s annual report to its stockholders or the Operating Partnership’s partners, as applicable, and proxy materials with respect to any meeting of BHM’s stockholders or the Operating Partnership’s partners, as applicable;
(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 Entities;
(ix) expenses incurred by managers, officers, personnel and agents of the Manager Expenses are 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 acquisition, development, redevelopment, construction, repositioning, leasing, financing, refinancing, sale or other disposition of an Investment or establishment of any of BHM’s securities offerings, or in connection with any Financing Transaction;
(x) costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses;
(xi) compensation and expenses of BHM’s custodian and transfer agent, if any;
(xii) 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;
(xiv) 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;
(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 Expenses. The Entity or their Investments separate from the office or offices of the Manager;
(xviii) 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 securities of any Company Entity, including, without limitation, in connection with any dividend reinvestment plan;
(xix) 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 Company Entity in his capacity as such for which any Company Entity is required to indemnify such trustee, director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by any court or governmental agency; and
(xx) all other expenses actually incurred by the Manager (except as otherwise specified herein) that are reasonably necessary for the performance by the Manager of its sole duties and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expensefunctions under this Agreement.
(c) The Costs and expenses incurred by the Manager may, at its option, elect not on behalf of the Company shall be reimbursed monthly to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, in future periods.
(d) the Manager. The Manager shall prepare a written expense 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 calendar month to be reimbursed by the Company, and shall use commercially reasonable efforts to deliver the same 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) days following 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 applicable calendar month (subject to reasonable delays resulting from delays in the receipt annual audit of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 2 contracts
Samples: Management Agreement (Bluerock Homes Trust, Inc.), Management Agreement (Bluerock Homes Trust, Inc.)
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), annual base salaries, bonus and other wages, any related payroll taxes and taxes, the cost of employee benefit plans benefits of such personnel, and costs the cost 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 annual base salary, bonus and other wages, any related payroll taxes, the cost of employee benefits of such personnel, and the cost of insurance with respect to such personnel, in each case 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 than corporate finance, tax, accounting, internal audit, legal risk management, operations, compliance and other non-investment management 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. The Manager shall be responsible for the compensation paid by the Manager to its personnel serving as the Company’s Chief Executive Officer, President, and Chief Investment Officer and each of the Manager’s investment management professionals, including annual base salaries, bonus and other wages, any related payroll taxes, the cost of employee benefits of such personnel, and the cost of insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”other than key man insurance that is for the benefit 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 to the extent incurred on behalf of the Company or any Subsidiary, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a) of this Agreement. Such costs and reimbursements shall be 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. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company Expenses 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 or any Subsidiary, if any, including the costs and expenses of the preparation of the Company’s registration statements, any and all costs and expenses of the Initial Private Placement, any subsequent private or public offerings and any filing fees and costs of being a public company, including filings with the SEC, the Financial Industry Regulatory Authority and the NYSE (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, refinancing, hedging, administration and ownership of the Company’s or any Subsidiary’s assets (including costs and expenses incurred for transactions that are not subsequently completed), including costs and expenses incurred in contracting with third 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, 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), 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, in accordance with the provisions of 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 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;
(vi) all costs and expenses of money borrowed by the Company or any Subsidiary, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase agreements and other indebtedness of the Company or any Subsidiary (including commitment fees, accounting fees, legal fees, closing and other costs and expenses);
(vii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(viii) 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;
(ix) all insurance costs incurred by the Company or any Subsidiary, including any costs to obtain liability or other insurance to indemnify the Manager and 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;
(xi) 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, and any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers (including those directors who are also employees of the Manager);
(xii) 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 all quarterly and annual audit or tax fees and expenses and all outsourced internal audit costs);
(xiii) subject to Section 9 below, all third-party legal, expert and other fees and expenses of the Company, the Manager or any Subsidiary relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, any Subsidiary, or the Manager (in connection with its services on behalf of the Company) or which the Company, any Subsidiary or the Manager is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xiv) subject to Section 9 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, any Subsidiary, the Manager, or against any 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 director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xv) All reasonable and documented travel and related expenses of directors, officers and employees of the Company, any Subsidiary or the Manager, incurred in connection with attending meetings of the Board of Directors, attending meetings of holders of securities of the Company or any Subsidiary, or performing other business activities that relate to the Company or any Subsidiary, including reasonable and documented travel and expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any asset or potential investment of the Company or any Subsidiary or establishment and maintenance of any repurchase agreements, warehouse facilities, borrowings under programs established by the U.S. government, other secured and unsecured forms of borrowings or any of the Company’s or any Subsidiary’s securities offerings, in each case to the extent that such expenses are reimbursable under the Company’s travel and expense reimbursement policy (provided that such policy and any material changes to such policy are mutually approved by the Manager and the Company by Special Board Approval);
(xvi) 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 any Subsidiary, if any;
(xvii) 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 in connection with any dividend reinvestment plan;
(xviii) all costs and expenses associated with any computer software, hardware, electronic equipment or purchased information technology services from third party vendors that is used primarily for the Company or any Subsidiary;
(xix) costs and expenses incurred with respect to market information systems and publications, research publications and materials, including financial analytics and market data, and settlement, clearing and custodial fees and expenses relating to any asset of the Company or any Subsidiary;
(xx) the costs and expenses incurred with respect to administering the Company’s incentive plans;
(xxi) the costs and expenses of maintaining compliance with all U.S. federal, state, and local income tax provisions and regulations and any applicable regulatory body rules and regulations;
(xxii) expenses relating to any office or office facilities, including disaster backup recovery 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 the costs and expenses of acquiring, originating, owning, protecting, maintaining, financing, refinancing, developing, modifying and disposing of assets; and
(xxiv) Subject to the last paragraph of this Section 8(b), all other reasonable and documented 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 obligations under this Agreement. For In addition, the avoidance Company will be required to pay the Company’s and any Subsidiary’s pro rata portion of doubtrent, telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager Expenses and its Affiliates required for the Company’s and the Subsidiaries’ operations. These expenses will be allocated between the Manager, on the one hand, and the Company and any Subsidiary, on the other hand, based on the ratio of the Company’s and the Subsidiaries’ proportion of gross assets compared to all remaining gross assets managed by the Manager as calculated at each fiscal quarter end; it being understood that all of such costs and expenses that are not directly related to the operations and business of the Company Expensesor any Subsidiary shall be fully paid by the Company or any Subsidiary. The ManagerManager and the Company will modify this allocation methodology, in its sole and absolute discretionsubject to the Board of Directors’ approval, shall determine whether a cost or expense is a Manager Expense or Company Expenseif the allocation becomes inequitable.
(c) The Costs and expenses incurred by the Manager may, at its option, elect not on behalf of the Company shall be incurred in good faith. Such expenses shall be reimbursed monthly to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, in future periods.
(d) the Manager. The Manager shall prepare a written expense 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 calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same 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 8(c) within five (5) days following 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 applicable calendar month (subject to reasonable delays resulting from delays in the receipt annual audit of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
(d) Notwithstanding the foregoing, the Manager may, at its option, elect not to seek reimbursement for all or a portion of certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in any future periods.
Appears in 1 contract
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses), the Manager shall be responsible for the out of pocket expenses related to any and all personnel of the Manager and its Affiliates who provide services to the Company pursuant to this Agreement or otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”).
(b) The Company shall, and shall cause each of its Subsidiaries to, without duplication, 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 to the extent incurred on behalf of the Company that are Company Expenses or such Subsidiary, as applicable, in accordance with this Agreement, other than Manager Expenses. The Manager shall not charge to the Company any expense reimbursable by the Company to the extent that the Manager has actually received reimbursement for such expenses from a third party. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses that are fairly allocable to the Company and its Subsidiaries in accordance with the Cost Allocation Policy shall be paid by the Company or its Subsidiaries, as applicable, and shall not be paid by the Manager or Affiliates of the Manager:
(i) fees, costs and expenses of outside counsel, accountants, auditors, appraisers, valuation experts, consultants, administrators, custodians, trustees and other similar outside advisors and service providers with respect to the Company and its Subsidiaries and their investments (including allocable compensation and expenses of Senior Advisors and Industry Advisors and allocable fees and expenses of Capstone and RPM related to the Company’s activities, and including the cost of any valuation of, or fairness opinion relating to, any investment or other asset or liability, or potential transaction, of the Company or its Subsidiaries);
(ii) fees, costs and expenses of identifying, investigating (and conducting diligence with respect to), evaluating, structuring, consummating, holding, monitoring, operating or selling potential and actual investments, including (A) legal, engineering, geological, accounting and environmental fees and expenses, (B) expenses incurred by the Company or its Subsidiaries in the operation, management, maintenance, development and exploitation of its investments, including amounts payable, distributable or reimbursable to the Technical and Operating Partners, third-party operators and joint venture partners not affiliated with KKR (whether or not such operators perform services on an exclusive basis for the Company (and its Subsidiaries) and Other KKR Funds) or similar persons, (C) brokerage commissions, clearing and settlement charges, investment banking fees, bank charges, placement, syndication and solicitation fees, arranger fees, sales commissions, and other investment, execution, closing and administrative fees, costs and expenses, (D) any travel-related costs and expenses incurred in connection therewith (including costs and expenses of accommodations and meals, costs and expenses related to attending trade association meetings, conferences or similar meetings for purposes of evaluating actual or potential investment opportunities, and with respect to travel on non-commercial aircraft, costs of travel at a comparable business class commercial airline rate), including any such expenses incurred in connection with attendance at meetings of the portfolio management committee, (E) expenses associated with portfolio and risk management, including bona fide hedging transactions in advance of and in connection with the acquisition, holding, operation, financing, refinancing or disposition of investments, including investments in currency, interest rate, and commodity futures, forwards and other hedging contracts, swaps and other derivative contracts or instruments, (F) fees, costs and expenses incurred in the organization, operation, administration, restructuring or winding up, dissolution and liquidation of any entities through which the Company or its Subsidiaries makes investments, and (G) fees, costs and expenses of outside counsel, accountants, auditors, consultants (including Capstone and RPM) and other similar outside advisors and service providers incurred in connection with designing, implementing and monitoring participation by portfolio companies in compliance and operational “best practices” programs and initiatives; provided, that in the event the Company co-invests with any Flagship Funds or Other KKR Funds, the Company shall only be responsible for its pro rata share of amounts reimbursable to the Manager and in the event the Company elects not to pursue such investment, and any Flagship Funds or Other KKR Funds consummate an investment, the Company shall not be responsible for any reimbursement;
(iii) any taxes, fees or other governmental charges levied against the Company or its Subsidiaries or on their respective assets;
(iv) fees, costs and expenses incurred in connection with any audit, examination, investigation or other proceeding by any taxing authority or incurred in connection with any governmental inquiry, investigation or proceeding, in each case, involving or otherwise applicable to the Company or its Subsidiaries, including the amount of any judgments, settlements, remediation or fines paid in connection therewith, excluding for the avoidance of doubt, (A) any expenses with respect to which the Manager would not be entitled to indemnification or advancement by reason of the limitations set forth in Section 8 of this Agreement, (B) any fine or penalty paid by the Manager or any other Affiliate of KKR to a governmental body of competent jurisdiction on the basis of a finding that the Manager or such Affiliate has breached any applicable duty to the Company or any of its Subsidiaries (it being understood for the avoidance of doubt that this subclause (ii) does not include any fine or penalty related to activities taken by the Manager or other Affiliates of KKR on behalf of the Company or its Subsidiaries) and (C) any taxes that are attributable to any equityholder of the Company or any of its Subsidiaries;
(v) fees, costs and expenses incurred in connection with legal, regulatory and tax compliance (including allocable compensation of KKR Personnel who are attorneys, accountants and tax advisors based upon actual hours engaged on matters related thereto) with U.S. federal, state, local, non-U.S. or other law and regulation relating to the activities of the Company or its Subsidiaries (including expenses relating to the preparation and filing of Form SHLA and/or other regulatory filings of KKR and its Affiliates relating to the activities of the Company or its Subsidiaries, including filings with the SEC, the U.S. Commodity Futures Trading Commission and compliance with the E.U. Alternative Investment Fund Managers Directive, but for the avoidance of doubt, excluding any ordinary course compliance with the Investment Advisers Act, such as the preparation of Form ADV, that do not relate directly to the affairs of the Company or its Subsidiaries);
(vi) fees, costs and expenses associated with the administration of the Company or its Subsidiaries, including in relation to raising capital and making distributions, the administration of assets, financial planning and treasury activities, the preparation and delivery of all Company financial statements and tax returns, other reports and notices and other required or requested information (including the cost of any third-party administrator that provides accounting and administrative services to the Company or its Subsidiaries), fees, costs and expenses incurred to audit such reports, provide access to such reports or information (including through a website or other portal) and any other operational, secretarial or postage expenses relating thereto or arising in connection with the distribution thereof (and including, in each case, technology and other administrative support therefor and allocable compensation and overhead of KKR Personnel engaged in the aforementioned activities and KKR Personnel providing oversight of any third-party administrator engaged in the aforementioned activities);
(vii) principal, interest on and fees, costs, charges and expenses relating to or arising out of all borrowings made by the Company or its Subsidiaries, including fees, costs and expenses incurred in connection with the negotiation and establishment of the relevant credit facility, credit support or other relevant arrangements with respect to such borrowings or related to securing the same by mortgage, pledge, or other encumbrance, if applicable;
(viii) fees, costs and expenses related to a disposition of securities by the Company or any of its Subsidiaries;
(ix) fees, costs and expenses incurred in connection with any amendments, restatements or other modifications to, and compliance with, this Agreement or any Governing Agreements of the Company or its Subsidiaries, including the solicitation of any consent, waiver or similar acknowledgment from the Board;
(x) fees, costs and expenses related to procuring, developing, implementing or maintaining information technology, data subscription and license-based services, risk analysis tools, research publications, materials, equipment and services, computer software or hardware and other electronic equipment used in connection with the Company and its Subsidiaries and their operation, administration and investment activities and otherwise used in connection with providing services to the Company or its Subsidiaries (including reporting as described herein), in connection with identifying, investigating (and conducting diligence with respect to) or evaluating, structuring, consummating, holding, monitoring, or selling potential and actual investments, or in connection with obtaining or performing research related to potential or actual investments, industries, sectors, geographies or other relevant market, economic, geopolitical or similar data or trends, including risk analysis software;
(xi) premiums and fees for insurance for the benefit of, or allocated to, the Company and its Subsidiaries (including directors’ and officers’ liability, errors and omissions or other similar insurance policies, and any other insurance for coverage of liabilities incurred in connection with the activities of, or on behalf of, the Company and its Subsidiaries including an allocable portion of the premiums and fees for one or more “umbrella” policies that cover the Company and its Subsidiaries, Other KKR Funds, KKR and Affiliates of KKR) and costs of Employee Retirement Income Security Act of 1974 fidelity bonds;
(xii) expenses of any actual or potential litigation or other dispute related to the Company or its Subsidiaries or any actual or potential investment (including expenses incurred in connection with the investigation, prosecution, defense, judgment or settlement of litigation and the appointment of any agents for service of process on behalf of the Company or its Subsidiaries) and other extraordinary expenses related to the Company or its Subsidiaries or actual or potential investment (including fees, costs and expenses that are classified as extraordinary expenses under generally accepted accounting principles in the United States), excluding for the avoidance of doubt, any expenses with respect to which the Manager would not be entitled to indemnification or advancement by reason of the limitations set forth in Section 8;
(xiii) fees, costs and expenses required under or otherwise related to the Company’s indemnification obligations under this Agreement, including advancement of any such fees, costs or expenses to Persons entitled to such indemnification, or other matters that are the subject of indemnification or contribution pursuant to Section 8 (but for the avoidance of doubt, without duplication);
(xiv) fees, costs and expenses incurred in connection with the dissolution, winding up of, liquidation and termination of the Company and/or its Subsidiaries;
(xv) all other third party costs and expenses of the Company and its Subsidiaries or the Manager and its Affiliates in connection with the business or operation of the Company and its Subsidiaries and their investments;
(xvi) Broken Deal Expenses (excluding such expenses that have reimbursed by third parties);
(xvii) in the case of each of the foregoing items, all similar items in connection with any entities (other than Subsidiaries) through which the Company or its Subsidiaries makes any investment, in each case to the extent not otherwise paid or borne by such Person; and
(xviii) Capstone Fees, RPM Fees, Service Costs and Regulated Broker-Dealer Fees, even if RPM were to become a subsidiary or Affiliate of KKR. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Managermay include any of the fees, costs, expenses and other liabilities described above incurred in connection with services provided, or other activities engaged in, by the Manager and its Affiliates, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expenseaddition to third parties.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, expenses in future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company or its Subsidiaries, as applicable, incurred during each calendar month quarter to be reimbursed by the CompanyCompany or its Subsidiaries, as applicable, and shall use commercially reasonable efforts to deliver the same to the Company within forty-five (545) days following the end of the applicable calendar month quarter (subject to reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; providedCompany or its Subsidiaries, that such payments may be offset as applicable, within ten (10) days following delivery of the expense statement by the Manager against amounts due 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 from the Managerand its Subsidiaries.
(e) The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise (including, without limitation, including each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and taxes, the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”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 documented costs and expenses of the Manager and its Affiliates incurred on behalf of any Company Entity, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a) and 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 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) Acquisition Expenses incurred in connection with the selection and acquisition of Investments;
(ii) General and Administrative Expenses Fee;
(iii) expenses in connection with the issuance of securities of the Company, any Financing Transaction and other costs incident to the extent acquisition, disposition and financing of the Investments;
(iv) costs of legal, tax, accounting, consulting, auditing and other similar services rendered to the Company by providers retained by the Manager and approved by PAC, 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 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 the securities of any Company Entity and 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 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 PAC's annual report to its stockholders or the Operating Partnership's partners, as applicable, and proxy materials with respect to any meeting of PAC's stockholders or the Operating Partnership's partners, as applicable;
(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 Entities;
(viii) 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 in connection with any Financing Transaction;
(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) 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 third parties;
(xiv) all other costs and expenses relating to the Company's business and investment operations, including the costs and expenses of owning, protecting, maintaining, developing and disposing of Investments, including appraisal, reporting, audit and legal fees;
(xv) expenses relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company Entities or the Investments of the Company separate from the office or offices of the Manager;
(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, the Operating Partnership or other governing body to or on account of holders of the securities of any Company 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 Company Entity in his capacity as such for which such Company Entity is required to indemnify such trustee, director, partner, member or officer pursuant to the applicable Governing Instruments or any agreement or other instrument or by any court or governmental agency; and
(xviii) all other expenses actually incurred by the Manager (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.
(c) Costs and expenses incurred by the Manager on behalf of the Company that are Company Expenses in accordance with this Agreementshall be reimbursed monthly to the Manager. For the avoidance of doubt, Manager Expenses are not Company Expenses. The Manager, in its sole and absolute discretion, shall determine whether a cost or expense is a Manager Expense or Company Expense.
(c) The Manager may, at its option, elect not to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or 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 by the Manager on behalf of the Company during each calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same such written statement to the Company within five (5) 30 days following after the end of each month. The Company shall pay all amounts payable to the applicable calendar month (subject Manager pursuant to reasonable delays resulting from delays in this Section 8(c) within five Business Days after the receipt of information)the written statement without demand, deduction, offset or delay. The amounts payable for such cost Cost and expense reimbursement to the Manager shall be paid by subject to adjustment at the end of each calendar year in connection with the annual audit of the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses 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) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses8(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 otherwise (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers or employees of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), annual base salaries, bonus and other wages, any related payroll taxes and taxes, the cost of employee benefit plans benefits of such personnel, and costs the cost 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 annual base salary, bonus and other wages, any related payroll taxes, the cost of employee benefits of such personnel, and the cost of insurance with respect to such personnel, in each case paid to (i) the Company’s Chief Financial Officer based on the percentage of his or her time spent on the Company’s affairs, (ii) the Company’s General Counsel, based on the percentage of his or her time spent on the Company’s affairs, and (iii) corporate finance, tax, accounting, internal audit, legal risk management, operations, compliance and other than non-investment management personnel of the Manager and its Affiliates who spend all or a portion of their time managing the Company’s or any Subsidiary’s affairs based upon the percentage of time devoted by such personnel to the Company’s and/or any Subsidiary’s affairs (provided, that, in any fiscal year, the Company shall not be required to reimburse the Manager for any such costs and expenses in excess of the Reimbursement Cap). The Manager shall be responsible solely for the compensation paid by the Manager to its personnel serving as the Company’s Chief Executive Officer, President, and Chief Investment Officer and each of the Manager’s investment management professionals, including annual base salaries, bonus and other wages, any related payroll taxes, the cost of employee benefits of such personnel, and the cost of insurance specifically required under this Agreement) with respect to such personnel (“Manager Expenses”other than key man insurance that is for the benefit 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 to the extent incurred on behalf of the Company or any Subsidiary, excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 8(a) of this Agreement. Such costs and reimbursements shall be 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 taking into account the specific facts and circumstances related to any such engagement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company Expenses or any Subsidiary shall be paid by the Company and shall not be required to 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 or any Subsidiary, if any, including the costs and expenses of the preparation of the Company’s registration statements, any and all costs and expenses of any private or public offerings and any filing fees and costs of being a public company, including filings with the SEC, the Financial Industry Regulatory Authority and the NYSE (or any other exchange or over-the-counter market), among other such entities;
(ii) all costs and expenses in connection with the acquisition, issuance, origination, disposition, development, modification, protection, maintenance, financing, negotiation, structuring, trading, settling, refinancing, hedging, administration and ownership of the Company’s or any Subsidiary’s assets or investments (including costs and expenses incurred for transactions that are not subsequently completed), including costs and expenses incurred in contracting with third parties, including Affiliates of the Manager, to provide such services, and any legal fees, accounting fees, consulting fees, custodial expenses, clearing and settlement charges, deposits, loan servicing fees, trustee fees, appraisal fees, insurance premiums, commitment fees, brokerage 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, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, originating, settling, monitoring or disposing of actual or potential assets or investments;
(iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing, filing, custodian, transfer agent, trustee, 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) reimbursements of costs and expenses (to the extent such costs and expenses would otherwise be reimbursable if incurred by the Manager or its Affiliates under this Section 8(b)) of a sub-advisor engaged in accordance with this Agreement. For ;
(v) all costs and expenses in connection with legal, accounting, due diligence (including due diligence costs for assets or investments that are not subsequently acquired), 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, in accordance with the provisions of Section 2;
(vi) all costs and 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 the SEC), including any costs of computer services in connection with this function, 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 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;
(vii) all costs and expenses of money borrowed by the Company or any Subsidiary, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, warehouse loans, repurchase agreements and other indebtedness of the Company or any Subsidiary (including commitment fees, accounting fees, legal fees, closing and other costs and expenses) or any of the Company’s securities offerings;
(viii) all taxes and license fees applicable to the Company or any Subsidiary, including interest and penalties thereon;
(ix) 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;
(x) all insurance costs incurred by the Company or any Subsidiary, including any costs to obtain liability or other insurance to indemnify the Manager and underwriters of any securities of the Company;
(xi) all costs and expenses relating to the acquisition of, and maintenance and upgrades to, the portfolio accounting systems of the Company or any Subsidiary;
(xii) 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, and any other insurance deemed necessary or advisable by the Board of Directors for the benefit of the Company and its directors and officers (including those directors who are also employees of the Manager);
(xiii) all third-party legal, compliance, accounting and auditing fees, costs and expenses and other similar services relating to the Company’s or any Subsidiary’s operations (including all quarterly and annual audit or tax fees, costs and expenses, all outsourced internal audit costs and including, for the avoidance of doubt, all costs and expenses of any third-party advisor or sub-advisor retained regarding the maintenance of (A) the Company’s or its Subsidiaries’ exemption from regulation as an investment company under the Investment Company Act or (B) the Company’s qualification as a REIT);
(xiv) subject to Section 10 below, all third-party legal, expert and other fees and expenses of the Company, the Manager Expenses are not Company Expenses. The or any Subsidiary relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, any Subsidiary, or the Manager (in connection with its services on behalf of the Company) or which the Company, any Subsidiary or the Manager is authorized or obligated to pay under applicable law or its Governing Instruments or by the Board of Directors;
(xv) subject to Section 10 below, all costs and expenses related to any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, any Subsidiary, the Manager, or against any 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 director or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
(xvi) all reasonable and documented travel and related costs and expenses of directors, officers and employees of the Company, any Subsidiary or the Manager, incurred in connection with attending meetings of the Board of Directors, attending meetings of holders of securities of the Company or any Subsidiary, or performing other business activities that relate to the Company or any Subsidiary, including reasonable and documented travel and expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any asset or potential investment of the Company or any Subsidiary or establishment and maintenance of any repurchase agreements, warehouse facilities, borrowings under programs established by the U.S. government, other secured and unsecured forms of borrowings or any of the Company’s or any Subsidiary’s securities offerings;
(xvii) all costs and 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 any Subsidiary, if any;
(xviii) all costs and 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 in connection with any dividend reinvestment plan;
(xix) all costs and expenses related to (A) the design and maintenance of the Company’s or any Subsidiary’s web site or sites and (B) the Company’s allocable share of all costs and expenses associated with any computer software, hardware, electronic equipment or purchased information technology services from third party vendors or Affiliates of the Manager that is used for the Company or any Subsidiary;
(xx) all costs and expenses incurred with respect to market information systems and publications, research publications and materials, including financial analytics and market data, and settlement, clearing and custodial fees and expenses relating to any asset of the Company or any Subsidiary;
(xxi) all costs and expenses incurred with respect to administering the Company’s incentive plans;
(xxii) all costs and expenses of maintaining compliance with all U.S. federal, state, and local income tax provisions and regulations and any applicable regulatory body rules and regulations and regulatory reporting obligations;
(xxiii) all costs and expenses relating to any office or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or any Subsidiary separate from the offices of the Manager;
(xxiv) rent and other fees (including disaster recovery facilities costs and expenses) relating to office(s), telephone, utilities, office furniture, equipment, machinery and other office, internal and overhead expenses of the Manager and its sole Affiliates required for the Company’s or any Subsidiary’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;
(xxv) all other costs and absolute discretionexpenses of the Company or any Subsidiary relating to the business and investment operations of the Company, shall determine whether a cost including the costs and expenses of acquiring, originating, owning, protecting, maintaining, financing, refinancing, developing, modifying and disposing of assets; and
(xxvi) all other expenses actually incurred by the Manager or expense is a 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 Expense or Company Expenseof its duties and obligations under this Agreement.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Manager shall be entitled to incur and pay costs and expenses on behalf of the Company and/or any of its Subsidiaries, including any costs and expenses described in Section 8(b). Costs and expenses incurred by the Manager on behalf of the Company or any Subsidiary shall be reimbursed quarterly to the Manager. The Manager shall prepare a written statement setting forth (x) in reasonable detail the costs and expenses of the Company and those incurred by the Manager on behalf of the Company or any Subsidiary during each fiscal quarter and (y) the estimated Reimbursement Cap for the applicable fiscal year based on such fiscal quarter, and shall use commercially reasonable efforts to deliver such written statement to the Company within forty-five (45) days after the end of each fiscal quarter (subject to reasonable delays resulting from delays in receipt of information). The Company shall pay all amounts payable to the Manager pursuant to this Section 8 within ten (10) 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 and in connection with Section 8(d).
(d) Within forty-five (45) days after the end of each fiscal year, the Manager shall compute the Reimbursement Cap for such fiscal year and provide a copy of such computation to the Board. If such computation shows an overpayment of reimbursable expenses by the Company for the applicable fiscal year, then the Company will be entitled to a credit in the amount of such overpayment against future Base Management Fees or Incentive Compensation.
(e) Notwithstanding the foregoing, the Manager may, at its option, elect not to seek reimbursement for all or a portion of certain expenses during a given monthly quarterly period, which determination shall not be deemed to construe a waiver of reimbursement for of such expenses, or similar expenses, expenses in any future periods.
(d) The Manager shall prepare a written expense statement in reasonable detail documenting the costs and expenses of the Company incurred during each calendar month to be reimbursed by the Company, and shall use commercially reasonable efforts to deliver the same to the Company within five (5) days following the end of the applicable calendar month (subject to reasonable delays resulting from delays in the receipt of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(ef) The provisions of this Section 7 8 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Appears in 1 contract
Expenses of the Company. (a) Subject to Section 7(b) and except as otherwise specified in the definition of Company Expenses, the 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 otherwise to the Manager pursuant to the Investment Advisory Agreement (including, without limitation, each of the officers of the Company and any directors of the Company who are also directors, officers officers, employees or employees agents of the Manager or any of its Affiliates), including, without limitation, normal overhead expenses relating to the business or operation of the Manager (including rent, office furniture, fixtures and computer equipment), salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance (other than insurance specifically required under this Agreement) with respect to such personnel (“personnel; provided, however, the Company shall be responsible for expenses incurred by the Manager Expenses”)in employing its Chief Financial Officer, Treasurer and Chief Compliance Officer, including annual base salary, bonus potential, any related employee’s withholding taxes and employee benefits.
(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 to the extent incurred on behalf of the Company Company, excepting only those expenses that are Company Expenses in accordance with specifically the responsibility of the Manager pursuant to Section 7(a) of this Agreement. For Without limiting the avoidance generality of doubtthe 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 Expenses are or Affiliates of the Manager:
(i) expenses in connection with the issuance and transaction costs incident to the acquisition, disposition and financing of the investments of the Company and its Subsidiaries;
(ii) costs of legal, tax, accounting, consulting, auditing and other similar services rendered for the Company by providers retained by the Manager (including, but not Company Expenses. The 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 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 other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of the Company’s securities offerings;
(v) expenses connected with communications to holders of the Company’s securities or of the Subsidiaries and 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, 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 sole listing, costs of preparing, printing and absolute discretionmailing 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, shall determine 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 of the Company’s 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 third parties;
(xiv) 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;
(xv) 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 the investments of the Company and its Subsidiaries separate from the office or offices of the Manager;
(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, without limitation, in connection with any dividend reinvestment plan;
(xvii) any judgment or settlement of pending or threatened proceedings (whether a cost civil, criminal or expense otherwise) against the Company or any Subsidiary, or against any 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 a required to indemnify such trustee, director, partner, member or officer by any court or governmental agency; and
(xviii) all other expenses actually incurred by the Manager Expense or Company Expense(except as otherwise specified herein) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement.
(c) The Costs and expenses incurred by the Manager may, at its option, elect not on behalf of the Company shall be reimbursed monthly to seek reimbursement for certain expenses during a given monthly period, which determination shall not be deemed to construe a waiver of reimbursement for such expenses, or similar expenses, in future periods.
(d) the Manager. The Manager shall prepare a written expense 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 calendar month to be reimbursed by the Companymonth, and shall use commercially reasonable efforts to deliver the same 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) days following 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 applicable calendar month (subject to reasonable delays resulting from delays in the receipt annual audit of information). The amounts payable for such cost and expense reimbursement shall be paid by the Company; provided, that such payments may be offset by the Manager against amounts due to the Company from the Manager.
(e) . The provisions of this Section 7 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
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Samples: Management Agreement (Starwood Property Trust, Inc.)