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EXHIBIT 10.2
ADVISORY AGREEMENT
THIS AGREEMENT IS MADE ON 1998
PARTIES
PRINCIPAL HEALTHCARE FINANCE PTY LIMITED, ACN 069 875 476 in its capacity as
trustee of the Trust of C/- Xxxxxxxx Xxx, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx ("THE COMPANY")
OMEGA (AUSTRALIA) PTY LIMITED ACN 082 747 331 of C/- Xxxxxxxx Fox, 000
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx ("THE ADVISOR")
RECITALS
A. The Company, as trustee of the Trust, is in the business in
Australia of, inter alia, acquiring real estate for the
provision of health care services, which real estate is to be
leased to and operated by Health Care Operators.
B. The Advisor, its Related Entities and its employees have
experience in the administration of real estate assets used to
provide health care services and the origination, structuring
and evaluation of real estate and mortgage investments and
leasing activities related to the health care industry.
C. The Advisor has agreed to provide certain management,
administration and advisory services to the Company on the
terms and conditions set out in this Agreement.
AGREEMENT
1. DUTIES OF THE ADVISOR
0.1 The Advisor will provide such services and activities relating to the
assets, operations and business plans of the Company as may be
appropriate, including:
(a) assisting in the preparation of annual budgets and business
plans for approval by the Board ("the Business Plans");
(b) using its best efforts to present to the Company a continuing
investment program consistent with the investment policies and
objectives of the Company as set out in the Business Plans;
(c) using its best efforts to present to the Company investment
opportunities consistent with the Business Plans and such investment
program as the Board may adopt from time to time;
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(d) furnishing or obtaining and supervising the performance of the
administration of the day-to-day operations of the Company, including
the investment of reserve funds and surplus cash in short-term money
market investments;
(e) serving as one of the Company's investment and financial advisors and
providing research, economic, and statistical data in connection with
the Company's investments and investment and financial policies;
(f) assisting the Company in investigating, selecting and negotiating
with borrowers, lenders, mortgagors, brokers, investors, builders,
developers and others;
(g) consulting with the Board and providing the Board with advice and
recommendations with respect to the making, acquiring (by purchase,
investment, exchange, or otherwise), holding, and disposition
(through sale, exchange, or otherwise) of investments consistent with
the Business Plans;
(h) advising the Board with respect to such services as may be required
in acquiring and disposing of investments, disbursing and collecting
the funds of the Company, paying the debts and fulfilling the
obligations of the Company, and handling, prosecuting, and settling
any claims of the Company, including enforcing leases, guarantees,
mortgages and other encumbrances securing investments;
(i) assisting the Company in obtaining such services as may be required
for property management, loan disbursements, and other activities
relating to the investments of the Company, so long as the
compensation for such services is to be agreed to by the Company and
the service provider;
(j) advising the Company in connection with capital market activities;
(k) quarterly, and at any time requested by the Board making reports to
the Board regarding the Company's performance to date in relation to
the Company's current approved Business Plan and its various
components, as well as the Advisor's performance of its services
under this Agreement;
(l) making or providing appraisal reports, where appropriate, on
investments or contemplated investments of the Company;
(m) assisting in preparation of reports and other documents necessary to
satisfy the reporting and other requirements of any governmental
bodies or agencies and assisting in maintaining effective
communications with shareholders of the Company; and
(n) doing all things necessary to ensure its ability to render the
services contemplated herein, including providing office space and
office furnishings, computing and accounting equipment and personnel
necessary for the performance of the foregoing services as Advisor,
all at its own expense, except as otherwise expressly provided for
herein.
0.2 In performing its services under this Agreement, the Advisor acknowledges
that:
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(a) it is doing so pursuant to a delegation of day to day management
by the Board, which delegation remains under the supervision and
control of the Board; and
(b) the Board and not the Advisor maintains ultimate authority for the
conduct of the business of the Company.
0.3 The Company acknowledges that the Advisor will perform its services
under this Agreement through facilities, personnel and support services
located at its Australian, United States and United Kingdom offices
through personnel selected by the Advisor.
0.4 In performing its services under this Agreement, the Advisor may
utilise facilities, personnel and support services of various of its
affiliates, whether located within or outside Australia. The Advisor
shall reimburse such affiliates for their services and facilities out
of the compensation provided for in Section 10. Notwithstanding the
above, the Company may request, and will pay for the direct costs of,
additional services (as described in Section 12 of this Agreement).
The Advisor will engage in other activities related to real estate and
not related to the Company or its assets, as contemplated in Section
15.
1. NO PARTNERSHIP OR JOINT VENTURE
The Company and the Advisor are not partners or joint venturers with
each other. Nothing in this Agreement will be construed so as to make
them such partners or joint venturers or impose any liability as such
on either of them. Nothing contained in this Agreement authorises
either party to act as agent or representative of the other party or to
authorise either party to create any obligation on behalf of the other
party.
2. RECORDS
The Advisor must, at all times keep proper books of account and records
of the Company's affairs which shall be accessible for inspection by
the Company at the Advisor's principal office in Australia or at the
offices of its Related Entities in the United States and at any time
during business hours on giving reasonable notice.
3. BANK ACCOUNTS
The Advisor may establish and maintain one or more bank accounts in its
own name, and may collect and deposit into such account or accounts,
and disburse from any such account or accounts, any money on behalf of
the Company, under such terms and conditions as the Board may approve.
No funds in any such account shall be commingled with funds of the
Advisor or another party; and the Advisor shall from time to time
render appropriate accounting of such collections and payments to the
Board and to the auditors of the Company.
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4. BOND
4.1 The Advisor will maintain a fidelity bond with a responsible surety
company or a reputable bank in such amount as may be required by the
Board from time to time, covering all directors, officers, employees,
and agents of the Advisor handling funds of the Company and any
investment documents or records relating to investments of the Company.
4.2 The bond is for the benefit of the Company in respect of losses
arising from acts of directors, officers, employees, and agents
through theft, embezzlement, fraud, negligence, error, or omission or
otherwise.
4.3 The premium for the bond is to be at the expense of the Company. If
any director of the Company is an Affiliate of the Advisor, the
approval of a majority of the Board who are not so affiliated is
required for the Company to require such a bond for the Advisor.
5. INFORMATION FURNISHED TO ADVISOR
The Board has the right to change a Business Plan at any time. The
Board must promptly furnish a copy of any changes to any Business Plan
to the Advisor. The Company shall furnish the Advisor with a certified
copy of all financial statements, a signed copy of each report prepared
by independent certified chartered accountants, and such other
information with regard to the Company's affairs as the Advisor may
from time to time reasonably request.
6. CONSULTATION AND ADVICE
6.1 In addition to the services described above, the Advisor shall consult
with the Board and at the request of the Board will furnish advice and
recommendations with respect to any aspect of the business and affairs
of the Company, including any factors that in the Advisor's best
judgment should influence the policies of the Company.
6.2 The Advisor and the Company will confer as required concerning the
Advisor's staffing and personnel assigned to perform the services of
the Advisor hereunder, with the goal that the Advisor will employ
highly qualified professional staff, in whom both the Advisor and the
Company repose confidence and trust.
7. ANNUAL BUSINESS PLAN AND BUDGET
7.1 The Advisor will assist the Company in the preparation of a Business
Plan for each financial year of the Company for submission to the
Board. Such Business Plan must include: a twelve-month projection of
operations and cash flow with explicit assumptions and a general plan
for asset sales or acquisitions, leasing, lending, enforcement and
borrowing activity, other investments or ventures and proposed
securities offerings or repurchases or any proposed restructuring of
the Company.
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7.2 To the extent possible, the Business Plan shall set out the Advisor's
recommendations and the basis therefor with respect to all material
investments of the Company. Upon approval by the Board, the Advisor
shall advise and assist in the conduct of the business of the Company
in accordance with the explicit provisions of the Business Plan,
specifically including the borrowing, leasing, maintenance, capital
improvements, renovations and sale of investments set forth in the
Business Plan.
7.3 Within forty five (45) days of the end of each calendar quarter, the
Advisor must provide the Board of Directors of the Company with a
report comparing the Company's actual performance for such quarter
against the Business Plan.
8. DEFINITIONS
8.1 The following terms will have the meanings set out below:
(a) "Adjusted Consolidated Net Income" means for any fiscal period the
consolidated net income for the Company and its consolidated
subsidiaries, (i) increased by (x) the amount of income allowable to
such fiscal period from zero-coupon investments or similar deferred
payment investments and (y) the amount of any increase in appraisal
write-up valuation of assets of the Company and its consolidated
subsidiaries as reported in annual valuations for such fiscal period
and decreased by the amount of any reduction in appraisal of assets
of the Company and its consolidated subsidiaries as reported in
annual valuations for such fiscal period.
(b) "Aggregate Book Value of Invested Assets" means the Book Value of
Invested Assets for all of the following as a group:
(i) the Company;
(ii) each Person that is a Related Entity of the Company; and
(iii) Securitisation Entity.
(c) "Board" means the board of directors of the Company as constituted
from time to time.
(d) "Book Value" of an asset or assets means the value of such asset or
assets as recorded on the books of any Person:
(i) before any appraisal write-up in accordance with Australian GAAP;
(ii) before provision for amortisation, depreciation, depletion or
valuation reserves; and
(iii) deducting any indebtedness or other liability in respect thereof.
(e) "Book Value of Invested Assets" means the Book Value of the total
assets of any nature or description owned, leased, managed or
operated by any Person (without deduction of any liabilities), but
excluding:
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(i) goodwill and other intangible assets;
(ii) cash; and
(iii) cash equivalent investments with terms which mature in one year or
less, and increased by the amount of any increase in appraisal
write-up of assets of the Company and its consolidated subsidiaries
as reported in annual valuations for such fiscal period and
decreased by the amount of any reduction in appraisal of assets of
the Company and its consolidated subsidiaries as reported in annual
valuations for such fiscal period.
(f) "Business Plan" means the Company's investment policies and
objectives and the capital and operating budget based thereon for the
relevant fiscal year of the Company as approved by the Board, as
modified or amended.
(g) "Change of Control" means, as to the Advisor:
(i) the election to the board of directors of the Advisor in a
contested election of directors of individuals comprising a
majority of directors who, immediately prior to the contested
election, were not members of the board of directors of the
Advisor; or
(ii) a change in the duties of the chairman and/or the chief executive
officer of the Advisor, which change prejudices the active
involvement of such officer or officers of the Advisor in the
performance of the Advisor's services under this Agreement.
(h) "Earnings per Share" means the Adjusted Consolidated Net Income of
the Company for any fiscal period, divided by the weighted average
number of ordinary shares outstanding for such fiscal period.
(i) "Health Care Operator" means an operator or manager of healthcare
facilities, (including aged care, nursing and/or residential care for
the aged, mentally infirm, chronically ill, intellectually or
physically disabled, hospitals and medical surgeries)
(j) "Invested Assets" shall mean the assets of any Person which are
managed by the Advisor.
(k) "Leases" means all leases and subleases from the Company and its
Related Entities to third party lessees and sublessees.
(l) "Mortgage Loans" means mortgages, debentures, bonds, and other
evidence of indebtedness or obligations, whether negotiable or
non-negotiable, and which are secured or collateralised by mortgages,
including first, wraparound, construction and development and second
or subordinated mortgages.
(m) "Person" means individuals, corporations, partnerships, joint stock
companies or associations, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts, or
other entities and governments and agencies and political
subdivisions thereof.
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(n) "Real Property" means land, interests in land, leasehold interests
(including but not limited to interests of a lessor or lessee
therein), and any buildings, structures, improvements, fixtures, and
equipment located on or used in connection with land, leasehold
interests, and rights in land or interests therein.
(o) "Related Entity" has the same meaning as is given to that
expression in the Corporation's Law and references to a body
corporate include a reference to a trust
(p) "Securitisation Entity" means any Person formed or availed of for the
purposes of financing and/or acquiring assets now owned, leased,
managed and/or operated by or to be owned, leased, managed and/or
operated by the Company or any Related Entity of the Company.
(q) "Trust" means the trust known as the Principal Healthcare Finance
Trust constituted by deed of trust dated 11 August 1995, as amended
from time to time.
8.2 All calculations made pursuant to this Agreement shall be based on
statements (which may be unaudited, except as provided herein) prepared
on an accrual basis consistent with Australian generally accepted
accounting principals, regardless of whether the Company may also
prepare statements on a different basis.
9. INVESTED ASSETS FEE: INCENTIVE FEE
9.1 On or before the twenty-eighth day of each month during the term of
this Agreement, the Company must pay to the Advisor, as compensation
for the management and advisory services rendered to the Company, a
fee at the rate of 0.075% per month of the average of the Aggregate
Book Value of the Invested Assets ("Invested Assets Fee") at the
beginning and at the end of the next preceding calendar month.
9.2 The annual rate of the Invested Assets Fee shall be 0.90% per annum.
Notwithstanding the foregoing, to the extent that Invested Assets
include assets held by a Securitisation Entity, the Invested Assets
Fee with respect to such assets shall accrue monthly and be paid
semi-annually on the date the Securitisation Entity makes a regularly
scheduled payment of interest and/or principal. The Invested Assets
Fee allowable to such assets, when paid, shall include a pro-rata
payment of interest and investment earnings earned by such
Securitisation Entity since the preceding payment date.
9.3 On or before the first day of the third calendar month following
receipt by the Company of its audited financial statements for the
prior year, the Company's auditors (or other third party acceptable to
the Advisor and the Company) shall determine whether the Earnings Per
Share for the financial year then ended based on weighted shares
outstanding, exceeded by at least fifteen percent (15%) the Earnings
Per Share for the preceding financial year (the "Target Earnings Per
Share")
9.4 In the event the Company shall have achieved Target Earnings Per Share
for any financial year, then the Company shall pay to the Advisor
within fourteen days after each determination referred to in clause
10.3, an incentive fee equal to two-tenths of one
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percent (0.02%) of the average of Aggregate Book Value of Invested
Assets (Incentive Fee). For purposes of the Incentive Fee, the
average of Aggregate Book Value of Invested Assets shall be determined
as the average of the Aggregate Book Value of Invested Assets on the
first day of the financial year and the Aggregate Book Value of
Invested Assets on the last day of the financial year.
9.5 Certain expenses and reimbursements described in Sections 13 and 14 of
this Agreement may be allocated in part to the account of the Advisor
and in part to the account of the Company, as may be agreed by the
parties.
10. STATEMENTS
Upon request, the Advisor must furnish to the Company not later than
the tenth (10th) day of each calendar month, beginning with the second
(2nd) calendar month of the term of this Agreement, a statement
showing the computation of the fees, if any, payable in respect to the
next preceding calendar month.
11. COMPENSATION FOR ADDITIONAL SERVICES
To the extent that the Company requests the Advisor or any director,
officer, partner, or employee of the Advisor or Related Entities of
the Advisor to render services for the Company other than those
required to be rendered by the Advisor hereunder, such additional
services, if performed, will be compensated separately on terms to be
agreed upon between such party and the Company from time to time.
12. EXPENSES OF THE ADVISOR
The Advisor will bear the following expenses, (subject to the
allocation provisions of Section 10):
(a) employment expenses of the personnel employed by the Advisor
including, but not limited to, fees, salaries, wages, payroll taxes,
travel expenses, and the cost of employee benefit plans and temporary
help expenses (including fees, salaries, and expenses paid to
directors, officers, and employees of the Advisor who are also
directors, officers or employees of the Company, when acting in such
capacity as directors, officers or employees of the Advisor);
(b) advertising and promotional expenses incurred in seeking investments
for the Company;
(c) rent, telephone, utilities, office furniture and furnishings, and
other office expenses of the Advisor;
(d) the cost of any internal accounting, statistical, bookkeeping or
computer equipment or computer time necessary for maintaining the
books and records of the Company; and
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(e) miscellaneous administrative expenses relating to performance by
the Advisor of its functions under this Agreement.
13. EXPENSES OF THE COMPANY
The Company must pay all of its expenses not assumed by or allocated to
the Advisor, including without limitation, the following expenses:
(a) the cost of money borrowed by the Company;
(b) income taxes, taxes and assessments on real property, and all other
taxes applicable to the Company;
(c) legal, auditing, accounting (other than internal accounting),
preparing all tax returns, underwriting, brokerage, listing,
registration and other fees, printing, engraving and other expenses,
and taxes incurred in connection with the insurance, distribution,
transfer, registration, and stock exchange listing of the Company's
securities;
(d) fees, salaries and expenses paid to directors, officers, and employees
of the Company;
(e) fees and expenses paid to independent advisors, independent
contractors, mortgage services, consultants, managers, local property
managers or management firms, accountants, attorneys and other agents
employed by or on behalf of the Company;
(f) expenses directly connected with the origination or purchase of
Mortgage Loans and with the acquisition, disposition, and ownership
of real estate equity interests, Leases or other property, including
the costs of enforcement, insurance, legal, protective, brokerage,
maintenance, repair, and property improvement services;
(g) expenses of maintaining and managing real estate equity interests;
(h) insurance, as required by the Board (including liability insurance);
(i) the expenses of organising, revising, amending, converting, modifying,
or terminating the Company;
(j) expenses connected with payments of dividends or interest or
distributions in cash or any other form made or caused to be made by
the Board of Directors of the Company to holders of securities of the
Company;
(k) All expenses connected with communications to holders of securities
of the Company and the other bookkeeping and clerical work necessary
in maintaining relations with holders of securities, including the
cost of printing and mailing certificates for securities and proxy
solicitation materials and reports to holders of the Company's
securities;
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(l) the cost of any outside auditing necessary for maintaining the
books and records of the Company and the costs for preparing and filing
all required tax returns;
(m) transfer agent's, registrar's and trustee's fees and charges;
(n) legal, accounting, investment banking, and auditing fees and expenses
charged by independent parties for services provided to the Company;
(o) out of pocket expenses incurred by the Advisor, arising from the
sales of Company properties, including those expenses related to
carrying out foreclosure and lease termination proceedings;
(p) costs and expenses associated with risk management (ie., insurance
relating to the Company's assets);
(q) loan refinancing compensation; and
(r) expenses associated with special services requested by the Board
pursuant to Section 12 hereof.
14. OTHER ACTIVITIES OF ADVISOR
14.1 Unless otherwise provided for in this Agreement, the Advisor, its
officers, directors, or employees or any of its Related Entities (and
such Related Entities officers, directors or employees) may engage in
other business activities relating to real estate investments or act as
advisor to any other Person, including those with investment policies
similar to the Company, and the Advisor and its officers, directors, or
employees and any of its Related Entities (and such Related Entities
officers, directors or employees) shall be free from any obligation to
present to the Company any particular investment opportunity that comes
to the Advisor or such persons, regardless of whether such opportunity
is in accordance with the Company's Business Plans.
14.2 Nothing in this Agreement shall prevent any director, officer or
employee of the Advisor, or any Related Entity (and such Related
Entities officers, directors, or employees) from engaging in any other
business or from rendering services of any kind to any other Person
(including competitive business activities).
14.3 Neither the Company nor its Related Entities, nor their respective
directors, officers, or employees, shall act as an advisor to, or agree
to act as an advisor to, any other Person with respect to real property
located in Australia and used for health care purposes, without the
prior written consent of the Board.
14.4 Directors, officers, employees and agents of the Advisor of its
Related Entities may serve as directors, employees, agents, nominees
or signatories of the Company. When executing documents or otherwise
acting in such capacities for the Company, such persons shall use
their respective titles in the Company.
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15. TERM; TERMINATION OF AGREEMENT
15.1 This Agreement shall commence on the date hereof ("the Effective
Date") and, subject to the automatic extension and early termination
provisions of this Agreement, shall continue for a period of seven
years ("Termination Date") and continue thereafter unless terminated
by either party as set forth below.
15.2 Beginning on the Termination Date and continuing as of each 1 January
thereafter, the term of this Agreement will automatically be extended
for one additional year unless either party exercises the early
termination rights described in the following sentence referred to in
subclause 16.3.
15.3 By written notice delivered to the other party not later than
15 November of any calendar year, either party may elect to avoid the
automatic extension of the term. For example, if a party gives notice
on or before 15 November 2005 of its election to avoid the automatic
extension provision of this Agreement, the term of this Agreement
would end on 31 December 2005.
15.4 During the ninety (90) day period following a Change in Control, the
Company shall have the right to elect to terminate this Agreement, by
notice given to the Advisor. Such termination shall be effective one
hundred eighty (180) days following the Advisor's receipt of notice of
termination from the Company.
15.5 If any director of the Company is an Related Entity of the Advisor,
the approval of a majority of the Board not so Related Entity shall be
required for the Company to make the election described in subclause
16.4.
15.6 If this Agreement is terminated pursuant to this Section 16, such
termination shall be without further liability or obligation of either
party to the other as of the Termination Date, except as provided in
Section 20. In no event shall such termination limit the Advisor's
right to indemnification pursuant to Section 21 hereof with respect to
any acts or omissions undertaken by Advisor prior to such termination.
16. AMENDMENTS
This Agreement shall not be changed, modified, terminated or discharged
in whole or in part except by an instrument in writing signed by both
parties hereto, or their respective successors or assigns, or otherwise
as provided herein. If any director of the Company is an Related Entity
of the Advisor, the approval of a majority of the Board who are not
Related Entity shall be required for the Company to amend this
Agreement.
17. DEFAULT, BANKRUPTCY, ETC
17.1 At the option solely of the Board, this Agreement shall be terminated
immediately upon written notice of termination from the Board to the
Advisor if any of the following events shall occur:
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(a) if the Advisor breaches any provision of this Agreement, and after
notice of breach does not remedy such default within thirty (30)
days, or, such longer period as may be appropriate if not susceptible
of being remedied within the thirty (30) days; or
(b) if the Advisor shall be adjudged or insolvent by a court of competent
jurisdiction, or an order is made by a court of competent
jurisdiction for the appointment of a receiver, liquidator, or
trustee of the Advisor or of all or substantially all of its property
by reorganisation, and such adjudication or order shall remain in
force or unstayed for a period of sixty (60) days; or
(c) if the Advisor is placed under administrationor for relief under any
law for the relief of debtors, or shall consent to the appointment of
a receiver of itself or of all or substantially all its property, or
shall make a general assignment for the benefit of its creditors, or
shall admit in writing its inability to pay its debts generally, as
they become due.
17.2 The Advisor agrees that if any of the events specified in subsections
(b) and (c) of this Section 18.1 occurs, it will give written notice
thereof to the Board within seven (7) days after such occurrence. If
any director of the Company is an Related Entity of the Advisor, the
approval of a majority of the Board who are not so Related Entity
shall be required for the Company to give any notice described in this
Section.
18. ASSIGNMENT
18.1 The Advisor may assign this Agreement to any Related Entity of the
Advisor, provided that at the time of the assignment the assignee (a)
assumes and agrees to be bound by this Agreement; and (b) is controlled
by a board of directors, a majority of whom are members of the Board of
Directors of the Advisor and (c) has as its chief executive officer the
individual who is chief executive officer or chairman of the Advisor.
Such an assignment or any other assignment of this Agreement by the
Advisor shall bind the assignee thereunder in the same manner as the
Advisor is bound hereunder.
18.2 The Advisor may also assign this Agreement to a corporation,
association, trust, or other successor organisation which may take over
the property and carry on the affairs of the Advisor, provided that
following such assignment the persons who controlled the operations of
the Advisor immediately prior to the assignment shall control the
operation of the successor organisation, including the performance of
its duties under this Agreement and they shall be bound by the same
restrictions by which they were bound to such assignment.
18.3 This Agreement shall not otherwise be assignable by the Advisor
without the prior written consent of the Company. This Agreement shall
not be assignable by the Company without the prior written consent of
the Advisor, except in the case of any assignment by the Company to a
corporation or other organisation which is the successor to the
Company, in which case such successor shall be bound hereby and by the
terms of said assignment in the same manner and to the same extent as
the Company is bound hereby.
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19. ACTION UPON TERMINATION
19.1 From the effective date of termination of this Agreement, pursuant to
Sections 16, 18 and 19 the Advisor shall not be entitled to
compensation for further services but shall be paid all compensation
accruing to the date of termination. The Advisor shall be deemed to
have earned one-twelfth of the Incentive Fee of each full calendar
month during which it provides services to the Company under this
Agreement. The Advisor shall forthwith upon such termination:
(a) pay over to the Company all moneys collected and held for the account
of the Company pursuant to this Agreement;
(b) deliver to the Board a full accounting, including a statement showing
all payments collected by it and a statement of any moneys held by
it, covering the period following the date of the last accounting
furnished to the Board; and
(c) deliver to the Board all property and documents of the Company then in
the custody of the Advisor.
19.2 For a period of one year following the date of termination of this
Agreement, neither the Company nor any Related Entity of the Company
shall, directly or indirectly, offer employment (including, but not
limited to consulting arrangements) to any employee of the Advisor or
any Related Entity of the Advisor without the prior written consent of
the Advisor, which consent may be freely withheld.
20. LIMITS OF ADVISOR RESPONSIBILITY
20.1 The Advisor assumes no responsibility other than to render the
services described herein in good faith and shall not be responsible
for any action of the Company in following or declining to follow any
advice or recommendation of the Advisor. The Advisor, its
shareholders, directors, officers, agents, employees and Related
Entities will not be liable to the Company, its shareholders, or
others, except by reason of acts constituting bad faith, wilful or
wanton misconduct or gross negligence.
20.2 The Company shall reimburse, indemnify and hold harmless the Advisor,
its shareholders, directors, officers, agents and employees and its
Related Entities for and from any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever in
respect to or arising from any acts or omissions of the Advisor
undertaken in good faith and in accordance with the standard set forth
above pursuant to the authority granted to it by this Agreement.
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21. NOTICES
21.1 Any notice, report, or other communication required or permitted to be
given hereunder shall be in writing unless some other method of giving
such notice, report, or other communication is accepted by the party
to whom it is given, and shall be effectively when transmitted by
telecopier, delivered or, in the case of mailed notice or notice sent
by overnight courier, upon receipt thereof as conclusively evidenced
by the signed receipt thereafter by being delivered at the end
addresses of the parties thereto:
THE BOARD AND/OR THE COMPANY:
Principal Healthcare Finance Pty Limited
c/x Xxxxxxxx Xxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx
Attention: Xxxxx Xxxx/ Xxxx Xxxxxxx
Telephone: (00) 0000 0000
Fax: (00) 0000 0000
THE ADVISOR:
Omega (Australia) Pty Limited
c/x Xxxxxxxx Fox
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx
Attention: Xxxxx Xxxx/Xxxx Xxxxxxx
Facsimile: (000) 0000 0000
with a copy, in the case of both the Company and the Advisor,
to:
Omega Worldwide, Inc,
000 Xxxxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X Xxxxxx, Xx - President
Telephone: (000) 000-0000
Fax: (000) 000 0000
and to:
Omega (UK) Limited
000 Xxxxxx Xxxxxx, Xxxxxx, XX0X 5 BP
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000 0000
Facsimile: (171) 929 3555
15
15
21.2 Each party may at any time give notice in writing to the other party
of a change of its address for the purpose of this Section 22.
22. HEADINGS
The section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning,
construction, or effect of this Agreement.
23. GOVERNING LAW; CONSENT TO JURISDICTION
This agreement shall be governed and controlled as to validity,
enforcement, interpretation, construction, effect and in all other
respects by the statutes, laws and decisions of New South Wales. The
Company consents to in personam jurisdiction before the state and
federal courts in New South Wales and agrees that all disputes
concerning this agreement may be litigated, in Advisor's sole
discretion and at Advisor's sole election, only in courts located in
New South Wales. The company agrees that service of process may be
effected upon in under any method permissible under the laws of New
South Wales and irrevocably waives any objection to venue in the state
or federal courts of New South Wale].
24. JOINDER
The Company shall cause each Related Entity and Securitisation Entity
to join in this Agreement for purposes of determining the Invested
Assets Fees and Incentive Fees payable to the Advisor under this
Agreement.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes and cancels
any pre-existing agreements with respect to such subject matter.
16
16
EXECUTED AS AN AGREEMENT
Signed for and on behalf of PRINCIPAL HEALTHCARE FINANCE PTY LIMITED in the
presence of:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of authorised person (print)
Signed for and on behalf of OMEGA (AUSTRALIA) PTY LIMITED in the presence of:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of authorised person (print)
17
17
18
18
-----------------------------------------------------------------------
ADVISORY AGREEMENT
PRINCIPAL HEALTHCARE FINANCE PTY LIMITED
OMEGA (AUSTRALIA) PTY LIMITED
-----------------------------------------------------------------------
[GRAPHIC OMITTED]
000 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
Tel x00 0 0000 0000 Fax x00 0 0000 0000 DX 000 XXXXXX
Email: xxxxxxxxxx@xxxxxx.XxxxxxxxXxx.xxx.xx
WWW site: xxxx://xxx.XxxxxxxxXxx.xxx.xx
19
19
Ref:WGC:940906
20
20
CONTENTS
1. DUTIES OF THE ADVISOR 1
2. NO PARTNERSHIP OR JOINT VENTURE 3
3. RECORDS 4
4. BANK ACCOUNTS 4
5. BOND 4
6. INFORMATION FURNISHED TO ADVISOR 4
7. CONSULTATION AND ADVICE 5
8. ANNUAL BUSINESS PLAN AND BUDGET 5
9. DEFINITIONS 5
10. INVESTED ASSETS FEE: INCENTIVE FEE 8
11. STATEMENTS 9
12. COMPENSATION FOR ADDITIONAL SERVICES 9
13. EXPENSES OF THE ADVISOR 9
14. EXPENSES OF THE COMPANY 10
15. OTHER ACTIVITIES OF ADVISOR 11
16. TERM; TERMINATION OF AGREEMENT 12
17. AMENDMENTS 13
18. DEFAULT, BANKRUPTCY, ETC 13
19. ASSIGNMENT 14
20. ACTION UPON TERMINATION 14
21. LIMITS OF ADVISOR RESPONSIBILITY 15
22. NOTICES 16
23. HEADINGS 17
21
21
24. GOVERNING LAW; CONSENT TO JURISDICTION 17
25. JOINDER 17
26. ENTIRE AGREEMENT 17
