EXHIBIT 10.2
AMENDED AND RESTATED ADVISORY AGREEMENT
This AMENDED AND RESTATED ADVISORY AGREEMENT (this "AGREEMENT") is entered
into on this the 16th day of September, 2005, by and between XXXX CREDIT
PROPERTY TRUST II, INC., a Maryland corporation (the "COMPANY"), and XXXX REIT
ADVISORS II, LLC, a Delaware limited liability company (the "ADVISOR").
W I T N E S S E T H
WHEREAS, the Company intends to issue shares of its common stock, par
value $.01, to the public, upon registration of such shares with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended;
WHEREAS, the Company intends to qualify as a real estate investment trust
and to invest its funds in investments permitted by the terms of the Company's
Articles of Incorporation and Sections 856 through 860 of the Internal Revenue
Code;
WHEREAS, the Company desires to avail itself of the experience, sources of
information, advice, assistance and certain facilities available to the Advisor
and to have the Advisor undertake the duties and responsibilities hereinafter
set forth, on behalf of, and subject to the supervision of, the Board of
Directors of the Company, all as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services,
subject to the supervision of the Board of Directors, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following defined terms used in this Agreement shall have the
meanings specified below:
ACQUISITION EXPENSES. Any and all expenses incurred by the Company, the Advisor,
or any Affiliate of either in connection with the selection, acquisition or
development of any Asset, whether or not acquired, including, without
limitation, legal fees and expenses, travel and communications expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, and title insurance premiums.
ACQUISITION FEES. Any and all fees and commissions, exclusive of Acquisition
Expenses but including the Acquisition and Advisory Fees, paid by any Person to
any other Person (including any fees or commissions paid by or to any Affiliate
of the Company or the Advisor) in connection with making or investing in
Mortgages or the purchase, development or construction of an Asset, including,
without limitation, real estate commissions, selection fees, Development Fees,
Construction Fees, non-recurring management fees, loan fees, points or any other
fees of a similar nature. Excluded shall be Development Fees and Construction
Fees paid to any Person not affiliated with the Sponsor in connection with the
actual development and construction of any Property.
ACQUISITION AND ADVISORY FEES. The fees payable to the Advisor pursuant to
Section 3.01(b).
ADVISOR. Xxxx REIT Advisors II, LLC, a Delaware limited liability company, any
successor advisor to the Company, or any Person to which Xxxx REIT Advisors II,
LLC, or any successor advisor subcontracts all or substantially all of its
functions.
AFFILIATE OR AFFILIATED. As to any Person, (i) any Person directly or indirectly
owning, controlling, or holding, with the power to vote, 10% or more of the
outstanding voting securities of such Person; (ii) any Person 10% or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held, with power to vote, by such other Person; (iii) any Person,
directly or indirectly, controlling, controlled by, or under common control with
such Person; (iv) any executive officer, director, trustee or general partner of
such Person; and (v) any legal entity for which such Person acts as an executive
officer, director, trustee or general partner.
AGGREGATE ASSETS VALUE. The aggregate book value of the Assets at the time of
measurement before deducting depreciation, bad debts or other similar non-cash
reserves and without reduction for any debt secured by or relating to such
assets; provided, however, that during such periods in which the Board of
Directors is determining on a regular basis the current value of the Company's
net assets for purposes of enabling fiduciaries of employee benefit plan
stockholders to comply with applicable Department of Labor reporting
requirements, "Aggregate Assets Value" will equal the greater of (i) the amount
determined pursuant to the foregoing or (ii) the most recent Assets' aggregate
valuation established by the Board of Directors without reduction for
depreciation, bad debts or other non-cash reserves and without reduction for any
debt secured by or relating to such assets.
APPRAISED VALUE. Value according to an appraisal made by an Independent
Appraiser.
ARTICLES OF INCORPORATION. The Articles of Incorporation of the Company filed
with the Maryland State Department of Assessments and Taxation in accordance
with the Maryland General Corporation Law, as amended from time to time.
ASSETS. Properties, Mortgages and other direct or indirect investments in equity
interests in, or loans secured by, Real Property (other than investments in bank
accounts, money market funds or other current assets, whether of the proceeds
from an Offering or the sale of an Asset or otherwise) owned by the Company,
directly or indirectly through one or more of its Affiliates.
ASSET MANAGEMENT FEE. The fee payable to the Advisor for day-to-day professional
management services in connection with the Company and its investments in Assets
pursuant to this Agreement.
AVERAGE INVESTED ASSETS. For a specified period, the average of the aggregate
book value of the Assets, before deducting depreciation, bad debts or other
similar non-cash reserves, computed by taking the average of such values at the
end of each month during such period; provided, however, that during such
periods in which the Board is determining on a regular basis the current value
of the Company's net assets for purposes of enabling fiduciaries of employee
benefit plan stockholders to comply with applicable Department of Labor
reporting requirements, "Average Invested Assets" will equal the greater of (i)
the amount determined pursuant to the foregoing or (ii) the most recent Assets'
aggregate valuation established by the Board of Directors without reduction for
depreciation, bad debts or other non-cash reserves.
BOARD OF DIRECTORS. The Board of Directors of the Company.
BYLAWS. The bylaws of the Company, as the same are in effect from time to time.
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CHANGE OF CONTROL. Any event (including, without limitation, issue, transfer or
other disposition of Shares of capital stock of the Company or equity interests
in the Partnership, merger, share exchange or consolidation) after which any
"person" (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes the "beneficial owner" (as
defined in Rule 13d-j of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of the Company or the Partnership
representing greater than 50% or more of the combined voting power of the
Company's or the Partnership's then outstanding securities, respectively;
provided, that, a Change of Control shall not be deemed to occur as a result of
any widely distributed public offering of the Shares.
CODE. Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Code shall mean
such provision as in effect from time to time, as the same may be amended, and
any successor provision thereto, as interpreted by any applicable regulations as
in effect from time to time.
COMPANY. Xxxx Credit Property Trust II, Inc., a corporation organized under the
laws of the State of Maryland.
COMPETITIVE REAL ESTATE COMMISSION. A real estate or brokerage commission paid
or, if no such commission is paid, the amount that customarily would be paid,
for the purchase or sale of a Property which is reasonable, customary, and
competitive in light of the size, type and location of the Property.
CONSTRUCTION FEE. A fee or other remuneration for acting as general contractor
and/or construction manager to construct improvements, supervise and coordinate
projects or to provide major repairs or rehabilitations on a Property.
CONTRACT PURCHASE PRICE. The amount actually paid or allocated in respect of the
purchase, development, construction or improvement of an Asset or the amount of
funds advanced with respect to a Mortgage, exclusive of Acquisition Fees and
Acquisition Expenses.
CONTRACT SALES PRICE. The total consideration provided for in the sales contract
for the sale of a Property.
DEALER MANAGER. Xxxx Capital Corporation, an Affiliate of the Advisor, or such
Person selected by the Board of Directors to act as the dealer manager for an
Offering.
DEVELOPMENT FEE. A fee for the packaging of a Property or Mortgage, including
the negotiation and approval of plans, and any assistance in obtaining zoning
and necessary variances and financing for a specific Property, either initially
or at a later date.
DIRECTOR. A member of the Board of Directors.
DIVIDENDS. Any dividends or other distributions of money or other property by
the Company to owners of Shares, including distributions that may constitute a
return of capital for federal income tax purposes.
FINANCE COORDINATION FEE. The fees payable to the Advisor pursuant to Section
3.01(g).
GROSS PROCEEDS. The aggregate purchase price of all Shares sold for the account
of the Company through an Offering, without deduction for Selling Commissions,
volume discounts, dealer manager fees, or Organization and Offering Expenses.
For the purpose of computing Gross Proceeds, the purchase price of any Share for
which reduced Selling Commissions or dealer manager fees are paid to the Dealer
Manager or a Soliciting Dealer (where net proceeds to the Company are not
reduced) shall be deemed to
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be the full amount of the Offering price per Share pursuant to the prospectus
for such Offering without reduction.
INDEPENDENT APPRAISER. A Person with no material current or prior business or
personal relationship with the Advisor or the Directors and who is a qualified
appraiser of Real Property of the type held by the Company or of other Assets as
determined by the Board of Directors. Membership in a nationally recognized
appraisal society such as the American Institute of Real Estate Appraisers or
the Society of Real Estate Appraisers shall be conclusive evidence of such
qualification as to Real Property.
INDEPENDENT DIRECTOR. A Director who is not on the date of determination, and
within the last two years from the date of determination has not been, directly
or indirectly associated with the Sponsor, the Company, the Advisor or any of
their Affiliates by virtue of (i) ownership of an interest in the Sponsor, the
Company, the Advisor or any of their Affiliates, other than the Company, (ii)
employment by the Sponsor, the Advisor or any of their Affiliates, (iii) service
as an officer or director of the Sponsor, the Advisor or any of their
Affiliates, other than as a Director of the Company, or of any other real estate
investment trust organized by the Sponsor or advised by the Advisor, (iv)
performance of services, other than as a Director of the Company, (v) service as
a director or trustee of more than three real estate investment trusts organized
by the Sponsor or advised by the Advisor, or of any other real estate investment
trust organized by the Sponsor or advised by the Advisor, or (vi) maintenance of
a material business or professional relationship with the Sponsor, the Advisor
or any of their Affiliates. A business or professional relationship is
considered material if the aggregate gross revenue derived by the Director from
the Sponsor, the Advisor and their Affiliates exceeds 5.0% of either the
Director's annual gross income during either of the last two years or the
Director's net worth on a fair market value basis. An indirect association with
the Sponsor or the Advisor shall include circumstances in which a Director's
spouse, parent, child, sibling, mother- or father-in-law, son- or
daughter-in-law, or brother- or sister-in-law is or has been associated with the
Sponsor, the Advisor, any of their Affiliates, or the Company.
INVESTED CAPITAL. The amount calculated by multiplying the total number of
Shares purchased by Stockholders by the issue price, reduced by the portion of
any Dividend that is attributable to Net Sales Proceeds and by any amounts paid
by the Company to repurchase Shares pursuant to the Company's plan for
repurchase of Shares.
JOINT VENTURES. The joint venture or partnership arrangements in which the
Company or the Partnership is a co-venturer or general partner which are
established to acquire or hold Assets.
LISTING OR LISTED. The listing of the Shares on a national securities exchange
or the quotation of Shares on The Nasdaq National Market. Upon such Listing, the
Shares shall be deemed Listed.
MARKET VALUE. Upon Listing, the market value of the outstanding Shares, measured
by taking the average closing price or average of bid and asked price, as the
case may be, over a period of 30 days during which the Shares are traded, with
such period beginning 180 days after Listing.
MORTGAGES. In connection with mortgage financing provided, invested in or
purchased by the Company, all of the notes, deeds of trust, security interests
or other evidences of indebtedness or obligations, which are secured or
collateralized by Real Property owned by the borrowers under such notes, deeds
of trust, security interests or other evidences of indebtedness or obligations.
NASAA GUIDELINES. The Statement of Policy Regarding Real Estate Investment
Trusts of the North American Securities Administrators Association, Inc.
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NET INCOME. For any period, the Company's total revenues applicable to such
period, less the total expenses applicable to such period other than additions
to reserves for depreciation, bad debts or other similar non-cash reserves and
excluding any gain from the sale of the Assets.
NET SALES PROCEEDS. In the case of a transaction described in clause (A) of the
definition of Sale, the proceeds of any such transaction less the amount of
selling expenses incurred by or on behalf of the Company, including all real
estate commissions, closing costs and legal fees and expenses. In the case of a
transaction described in clause (B) of such definition, Net Sales Proceeds means
the proceeds of any such transaction less the amount of selling expenses
incurred by or on behalf of the Company, including any legal fees and expenses
and other selling expenses incurred in connection with such transaction. In the
case of a transaction described in clause (C) of such definition, Net Sales
Proceeds means the proceeds of any such transaction actually distributed to the
Company from the Joint Venture less the amount of any selling expenses,
including legal fees and expenses incurred by or on behalf of the Company (other
than those paid by the Joint Venture). In the case of a transaction or series of
transactions described in clause (D) of the definition of Sale, Net Sales
Proceeds means the proceeds of any such transaction (including the aggregate of
all payments under a Mortgage or in satisfaction thereof other than regularly
scheduled interest payments) less the amount of selling expenses incurred by or
on behalf of the Company, including all commissions, closing costs and legal
fees and expenses. In the case of a transaction described in clause (E) of such
definition, Net Sales Proceeds means the proceeds of any such transaction less
the amount of selling expenses incurred by or on behalf of the Company,
including any legal fees and expenses and other selling expenses incurred in
connection with such transaction. In the case of a transaction described in the
last sentence of the definition of Sale, Net Sales Proceeds means the proceeds
of such transaction or series of transactions less all amounts generated thereby
which are reinvested in one or more Assets within 180 days thereafter and less
the amount of any real estate commissions, closing costs, and legal fees and
expenses and other selling expenses incurred by or allocated to the Company in
connection with such transaction or series of transactions. Net Sales Proceeds
shall also include any consideration (including non-cash consideration such as
stock, notes, or other property or securities) that the Company determines, in
its discretion, to be economically equivalent to proceeds of a Sale, valued in
the reasonable determination of the Company. Net Sales Proceeds shall not
include any reserves established by the Company in its sole discretion.
OFFERING. Any public offering and sale of Shares pursuant to an effective
registration statement filed under the Securities Act, excluding Shares offered
under any employee benefit plan.
OPERATING EXPENSES. All costs and expenses paid or incurred by the Company, as
determined under generally accepted accounting principles, which are in any way
related to the operation of the Company or to Company business, including the
Asset Management Fee, but excluding (i) the expenses of raising capital such as
Organization and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other such
expenses and tax incurred in connection with the issuance, distribution,
transfer, registration and Listing of the Shares, (ii) interest payments, (iii)
taxes, (iv) non-cash expenditures such as depreciation, amortization and bad
debt reserves, (v) the Subordinated Share of Net Sales Proceeds, (vi) the
Performance Fee, (vii) the Subordinated Incentive Listing Fee, (viii)
Acquisition Fees and Acquisition Expenses, (ix) real estate commissions on the
Sale of Property, and (x) other fees and expenses connected with the
acquisition, disposition, management and ownership of real estate interests,
mortgage loans or other property (including the costs of foreclosure, insurance
premiums, legal services, maintenance, repair and improvement of property).
ORGANIZATION AND OFFERING EXPENSES. All expenses incurred by, and to be paid
from, the assets of the Company in connection with and in preparing the Company
for registration of and subsequently offering and distributing its Shares to the
public, which may include, but are not limited to, total underwriting and
brokerage discounts and commissions (including fees of the underwriters'
attorneys); expenses for
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printing, engraving and mailing; salaries of employees while engaged in sales
activities; charges of transfer agents, registrars, trustees, escrow holders,
depositaries and experts; and expenses of qualification of the sale of the
securities under federal and state laws, including taxes and fees, accountants'
and attorneys' fees.
PARTNERSHIP. Xxxx Operating Partnership II, LP, a Delaware limited partnership,
through which the Company may own Assets.
PERFORMANCE FEE. The fee payable to the Advisor upon termination of this
Agreement under certain circumstances if certain performance standards have been
met pursuant to Section 4.03(b) or (c).
PERSON. An individual, corporation, business trust, estate, trust, partnership,
limited liability company or other legal entity.
PROPERTY OR PROPERTIES. As the context requires, any, or all, respectively, of
the Real Property acquired by the Company, either directly or indirectly
(whether through joint venture arrangements or other partnership or investment
interests).
PROSPECTUS. Prospectus has the meaning set forth in Section 2(10) of the
Securities Act, including a preliminary prospectus, an offering circular as
described in Rule 256 of the General Rules and Regulations under the Securities
Act or, in the case of an intrastate offering, any document by whatever name
known, utilized for the purpose of offering and selling securities of the
Company to the public.
REAL ESTATE COMMISSION. The fee payable to the Advisor for services provided in
connection with the Sale of one or more Properties pursuant to Section 3.01(c).
REAL PROPERTY. Land, rights in land (including leasehold interests), and any
buildings, structures, improvements, furnishings, fixtures and equipment located
on or used in connection with land and rights or interests in land.
REIT. A corporation, trust, association or other legal entity (other than a real
estate syndication) that is engaged primarily in investing in equity interests
in real estate (including fee ownership and leasehold interests) or in loans
secured by real estate or both in accordance with Sections 856 through 860 of
the Code.
SALE OR SALES. Any transaction or series of transactions whereby: (A) the
Company or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including the
lease of any Property consisting of a building only, and including any event
with respect to any Property which gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Company or the Partnership
directly or indirectly (except as described in other subsections of this
definition) sells, grants, transfers, conveys, or relinquishes its ownership of
all or substantially all of the interest of the Company or the Partnership in
any Joint Venture in which it is a co-venturer or partner; (C) any Joint Venture
directly or indirectly (except as described in other subsections of this
definition) in which the Company or the Partnership as a co-venturer or partner
sells, grants, transfers, conveys, or relinquishes its ownership of any Property
or portion thereof, including any event with respect to any Property which gives
rise to insurance claims or condemnation awards; (D) the Company or the
Partnership directly or indirectly (except as described in other subsections of
this definition) sells, grants, conveys or relinquishes its interest in any
Mortgage or portion thereof (including with respect to any Mortgage, all
repayments thereunder or in satisfaction thereof other than regularly scheduled
interest payments) and any event with respect to a Mortgage which gives rise to
a significant amount of insurance proceeds or similar awards; or
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(E) the Company or the Partnership directly or indirectly (except as described
in other subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any other Asset not previously described in this
definition or any portion thereof. Notwithstanding the foregoing, "Sale" or
"Sales" shall not include any transaction or series of transactions specified in
clause (A) through (E) above in which the proceeds of such transaction or series
of transactions are reinvested in one or more Assets within 180 days thereafter.
SECURITIES ACT. The Securities Act of 1933, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Securities Act
shall mean such provision as in effect from time to time, as the same may be
amended, and any successor provision thereto, as interpreted by any applicable
regulations as in effect from time to time.
SELLING COMMISSIONS. Any and all commissions payable to underwriters, dealer
managers or other broker-dealers in connection with the sale of the Shares,
including, without limitation, commissions payable to Xxxx Capital Corporation.
SHARES. Any Shares of the Company's common stock, par value $.01 per share.
SOLICITING DEALERS. Broker-dealers who are members of the National Association
of Securities Dealers, Inc., or that are exempt from broker-dealer registration,
and who, in either case, have executed participating broker or other agreements
with the Dealer Manager to sell Shares.
SPONSOR. Xxxx Holdings Corporation.
STOCKHOLDERS. The record holders of the Shares as maintained in the books and
records of the Company or its transfer agent.
STOCKHOLDERS' 8.0% RETURN. As of any date, an aggregate amount equal to an 8.0%
cumulative, noncompounded, annual return on Invested Capital.
SUBORDINATED INCENTIVE LISTING FEE. The fee payable to the Advisor under certain
circumstances if the Shares are Listed pursuant to Section 3.01(e).
SUBORDINATED SHARE OF NET SALES PROCEEDS. The fee payable to the Advisor under
certain circumstances following receipt of Net Sales Proceeds pursuant to
Section 3.01(d).
TERMINATION DATE. The date of termination of this Agreement.
2%/25% GUIDELINES. The requirement pursuant to the Statement of Policy Regarding
Real Estate Investment Trusts of the North American Securities Administrators
Association, Inc. that, in any 12 month period, total Operating Expenses not
exceed the greater of 2% of Average Invested Assets during such 12 month period
or 25% of Net Income over the same 12 month period.
ARTICLE II
THE ADVISOR
2.01 APPOINTMENT. The Company hereby appoints the Advisor to serve as its
advisor on the terms and conditions set forth in this Agreement, and the Advisor
hereby accepts such appointment.
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2.02 DUTIES OF THE ADVISOR. The Advisor undertakes to use its commercially
reasonable best efforts to present to the Company potential investment
opportunities and to provide a continuing and suitable investment program
consistent with the investment objectives and policies of the Company as
determined and adopted from time to time by the Board of Directors. In
performance of this undertaking, subject to the supervision of the Board of
Directors and consistent with the provisions of the Company's most recent
Prospectus for Shares, Articles of Incorporation and Bylaws, the Advisor shall,
either directly or by engaging an Affiliate of the Advisor or other Person:
(a) serve as the Company's investment and financial advisor and provide
research and economic and statistical data in connection with the Assets and the
Company's investment policies;
(b) provide the daily management of the Company and perform and supervise
the various administrative functions reasonably necessary for the management and
operations of the Company;
(c) maintain and preserve the books and records of the Company, including
stock books and records reflecting a record of the Stockholders and their
ownership of the Company's uncertificated Shares, if any, and acting as transfer
agent for the Shares;
(d) investigate, select, and, on behalf of the Company, engage and conduct
business with such Persons as the Advisor deems necessary to the proper
performance of its obligations hereunder, including but not limited to
consultants, accountants, correspondents, lenders, technical advisors,
attorneys, brokers, underwriters, corporate fiduciaries, escrow agents,
depositaries, custodians, agents for collection, insurers, insurance agents,
banks, builders, developers, property owners, mortgagors, property management
companies, transfer agents and any and all agents for any of the foregoing,
including Affiliates of the Advisor, and Persons acting in any other capacity
deemed by the Advisor necessary or desirable for the performance of any of the
foregoing services, including but not limited to entering into contracts in the
name of the Company with any of the foregoing;
(e) consult with the officers and the Board of Directors and assist the
Board of Directors in the formulation and implementation of the Company's
financial policies, and, as necessary, furnish the Board of Directors with
advice and recommendations with respect to the making of investments consistent
with the investment objectives and policies of the Company and in connection
with any borrowings proposed to be undertaken by the Company;
(f) subject to the provisions of Sections 2.02(i) and 2.03 hereof, (i)
locate, analyze and select potential investments in Assets, (ii) structure and
negotiate the terms and conditions of transactions pursuant to which investment
in Assets will be made; (iii) make investments in Assets on behalf of the
Company or the Partnership in compliance with the investment objectives and
policies of the Company; (iv) arrange for financing and refinancing and make
other changes in the asset or capital structure of, and dispose of, reinvest the
proceeds from the sale of, or otherwise deal with the investments in, Assets;
and (v) enter into leases of Property and service contracts for Assets and, to
the extent necessary, perform all other operational functions for the
maintenance and administration of such Assets, including the servicing of
Mortgages;
(g) provide the Board of Directors with periodic reports regarding
prospective investments in Assets;
(h) if a transaction requires approval by the Board of Directors, deliver
to the Board of Directors all documents required by them to properly evaluate
the proposed transaction;
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(i) obtain the prior approval of the Board of Directors (including a
majority of all Independent Directors) for any and all investments in Assets;
(j) obtain the prior approval of a majority of the Independent Directors
and a majority of the Board of Directors not otherwise interested in any
transaction with the Advisor or its Affiliates;
(k) negotiate on behalf of the Company with banks or lenders for loans to
be made to the Company, negotiate on behalf of the Company with investment
banking firms and broker-dealers, and negotiate private sales of Shares and
other securities of the Company or obtain loans for the Company, as and when
appropriate, but in no event in such a way so that the Advisor shall be acting
as broker-dealer or underwriter; and provided, further, that any fees and costs
payable to third parties incurred by the Advisor in connection with the
foregoing shall be the responsibility of the Company;
(l) obtain reports (which may be prepared by or for the Advisor or its
Affiliates), where appropriate, concerning the value of investments or
contemplated investments of the Company in Assets;
(m) from time to time, or at any time reasonably requested by the Board of
Directors, make reports to the Board of Directors of its performance of services
to the Company under this Agreement;
(n) provide the Company with all necessary cash management services;
(o) deliver to or maintain on behalf of the Company copies of all
appraisals obtained in connection with the investments in Assets;
(p) upon request of the Company, act, or obtain the services of others to
act, as attorney-in-fact or agent of the Company in making, requiring and
disposing of Assets, disbursing, and collecting the funds, paying the debts and
fulfilling the obligations of the Company and handling, prosecuting and settling
any claims of the Company, including foreclosing and otherwise enforcing
mortgage and other liens and security interests comprising any of the Assets;
(q) supervise the preparation and filing and distribution of returns and
reports to governmental agencies and to Stockholders and other investors and act
on behalf of the Company in connection with investor relations;
(r) provide office space, equipment and personnel as required for the
performance of the foregoing services as Advisor;
(s) prepare on behalf of the Company all reports and
returns required by the Securities and Exchange Commission, Internal Revenue
Service and other state or federal governmental agencies; and
(t) do all things necessary to assure its ability to render the services
described in this Agreement.
2.03 MODIFICATION OR REVOCATION OF AUTHORITY OF ADVISOR. The Board of Directors
may, at any time upon the giving of notice to the Advisor, modify or revoke the
authority set forth in Section 2.02, provided however, that such modification or
revocation shall be effective upon receipt by the Advisor or such later date as
is specified by the Board of Directors and included in the notice provided to
the Company and such modification or revocation shall not be applicable to
investment transactions to which the Advisor has committed the Company prior to
the date of receipt by the Advisor of such notification, or, if later, the
effective date of such modification or revocation specified by the Board of
Directors.
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2.04 BANK ACCOUNTS. The Advisor may establish and maintain one or more bank
accounts in its own name for the account of the Company or in the name of the
Company and may collect and deposit into any 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 of Directors may approve, provided
that no funds shall be commingled with the funds of the Advisor; and the Advisor
shall from time to time, upon request by the Board of Directors, its Audit
Committee or the auditors of the Company, render appropriate accountings of such
collections and payments to the Board of Directors, its Audit Committee and the
auditors of the Company.
2.05 RECORDS; ACCESS. The Advisor shall maintain appropriate records of all its
activities hereunder and make such records available for inspection by the Board
of Directors and by counsel, auditors and authorized agents of the Company, at
any time or from time to time, upon reasonable request, during normal business
hours. The Advisor shall at all reasonable times have access to the books and
records of the Company.
2.06 LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the contrary
notwithstanding, the Advisor shall refrain from taking any action which, in its
sole judgment made in good faith, would (a) adversely affect the status of the
Company as a REIT, (b) subject the Company to regulation under the Investment
Company Act of 1940, as amended, (c) violate any law, rule, regulation or
statement of policy of any governmental body or agency having jurisdiction over
the Company, the Shares or its other securities, or (d) not be permitted by the
Articles of Incorporation or Bylaws, except if such action shall be ordered by
the Board of Directors, in which case the Advisor shall notify promptly the
Board of Directors of the Advisor's judgment of the potential impact of such
action and shall refrain from taking such action until it receives further
clarification or instructions from the Board of Directors. In such event the
Advisor shall have no liability for acting in accordance with the specific
instructions of the Board of Directors so given. Notwithstanding the foregoing,
the Advisor, its directors, officers, employees and stockholders, and the
directors, officers, employees and stockholders of the Advisor's Affiliates
shall not be liable to the Company or to the Board of Directors or Stockholders
for any act or omission by the Advisor, its directors, officers, employees or
stockholders, or for any act or omission of any Affiliate of the Advisor, its
directors, officers, employees or stockholders, except as provided in Article V
of this Agreement.
2.07 OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall prevent the
Advisor or its Affiliates from engaging in other activities, including, without
limitation, the rendering of advice to other Persons (including other REITs) and
the management of other programs advised, sponsored or organized by the Advisor
or its Affiliates; nor shall this Agreement limit or restrict the right of any
director, officer, employee, or stockholder of the Advisor or its Affiliates to
engage in any other business or to render services of any kind to any other
Person. The Advisor may, with respect to any investment in which the Company is
a participant, also render advice and service to each and every other
participant therein. The Advisor shall report to the Board of Directors the
existence of any condition or circumstance, existing or anticipated, of which it
has knowledge, which creates or could create a conflict of interest between the
Advisor's obligations to the Company and its obligations to or its interest in
any other Person. The Advisor or its Affiliates shall promptly disclose to the
Board of Directors knowledge of such condition or circumstance. If the Sponsor,
Advisor, any Director or Affiliates thereof have sponsored other investment
programs with similar investment objectives which have investment funds
available at the same time as the Company, it shall be the duty of the Board of
Directors (including the Independent Directors) to adopt the method set forth in
the Company's most recent Prospectus for its Shares or another reasonable method
by which investments are to be allocated to the competing investment entities
and to use their best efforts to apply such method fairly to the Company.
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ARTICLE III
COMPENSATION
3.01 FEES.
(a) Asset Management Fee. The Company shall pay the Advisor a monthly
Asset Management Fee on or before the last day of each month in an amount equal
to 0.02083% of the Aggregate Assets Value as of the last day of the preceding
month.
(b) Acquisition and Advisory Fees. The Company shall pay the Advisor or an
Affiliate a fee in the amount of 2.0% of the Contract Purchase Price of each
Asset as Acquisition and Advisory Fees payable at the time and in respect of
funds expended for (i) the acquisition of an Asset, (ii) to the extent that such
funds are capitalized, for the development, construction or improvement of an
Asset, or (iii) the making of a Mortgage. The total of all Acquisition Fees and
any Acquisition Expenses shall be limited in accordance with the Articles of
Incorporation.
(c) Real Estate Commission. If the Advisor or an Affiliate provides a
substantial amount of the services (as determined by a majority of the
Independent Directors) in connection with the Sale of one or more Properties,
the Advisor or such Affiliate shall receive a Real Estate Commission up to
one-half of the brokerage commission paid, but in no event an amount to exceed
2.0% of the Contact Sales Price of such Property or Properties; provided,
however, that no Real Estate Commissions shall be payable to the Advisor for the
Sale of Properties if such Sales involve the Company selling all or
substantially all of its Properties in one or more transactions designed to
effectuate a business combination transaction (as opposed to a Company
liquidation, in which case the Real Estate Commissions would be payable if the
Advisor or an Affiliate provides a substantial amount of services as provided
above). The Real Estate Commission may be paid in addition to real estate
commissions paid to non-Affiliates, provided that the total real estate
commissions paid to all Persons by the Company (including the Real Estate
Commission) shall not exceed an amount equal to the lesser of (i) 6.0% of the
Contract Sales Price of a Property or (ii) the Competitive Real Estate
Commission.
(d) Subordinated Share of Net Sales Proceeds. The Subordinated Share of
Net Sales Proceeds shall be payable to the Advisor in an amount equal to 10.0%
of Net Sales Proceeds remaining after the Stockholders have received Dividends
equal to the sum of the Stockholders' 8.0% Return and 100% of Invested Capital.
The Company shall have the option to pay such fee in the form of cash, Shares, a
promissory note, or any combination of the foregoing, or any combination of the
foregoing.
(e) Subordinated Incentive Listing Fee. Upon Listing, the Advisor shall be
entitled to the Subordinated Incentive Listing Fee in an amount equal to 10.0%
of the amount by which (i) the Market Value plus the total of all Dividends paid
to Stockholders from the Company's inception until the date that Market Value is
determined, exceeds (ii) the sum of (A) 100% of Invested Capital and (B) the
total Dividends required to be paid to the Stockholders in order to pay the
Stockholders' 8.0% Return from inception through the date that Market Value is
determined. The Company shall have the option to pay such fee in the form of
cash, Shares, a promissory note, or any combination of the foregoing. If the
Company pays such fee with a promissory note, payment in full shall be made from
the Net Sales Proceeds of the first Sale completed by the Company after Listing,
and interest will accrue at a rate deemed fair and reasonable by the Board of
Directors from and after the date of Listing. If the Net Sales Proceeds from the
first Sale after Listing are insufficient to pay the promissory note in full,
including accrued interest, then the promissory note shall be paid in part with
such Net Sales Proceeds, and in part from the Net Sales Proceeds from the next
successive Sales until the amount owing pursuant to such promissory note is paid
in full. If the promissory note has not been paid in full within five years from
the
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date of Listing, then the Advisor, or its successors or assigns, may elect to
convert the unpaid balance, including accrued but unpaid interest, into Shares
at a price per Share equal to the average closing price of the Shares over the
ten trading days immediately preceding the date of such election. If the Shares
are no longer Listed at such time as the promissory note becomes convertible
into Shares as provided by this paragraph, then the price per Share, for
purposes of conversion, shall equal the fair market value for the Shares as
determined by the Board of Directors based upon the Appraised Value of the
Assets as of the date of election.
(f) Changes to Fee Structure. In the event of Listing, the Company and the
Advisor shall negotiate in good faith to establish a fee structure appropriate
for a perpetual-life entity.
(g) Finance Coordination Fee. In the event of the origination or
refinancing of any debt financing obtained by the Company that is used to
acquire properties or to make other permitted investments, and if the Advisor
provides a substantial amount of services, as determined by the Independent
Directors in connection therewith, the Company will pay to the Advisor a
financing coordination fee equal to 1% of the amount available under such
financing; provided, however, that the Advisor shall not be entitled to a
Finance Coordination Fee in connection with the refinancing of any loan secured
by any particular property that was previously subject to a refinancing in which
the Advisor received a Finance Coordination Fee. Finance Coordination Fees
payable from loan proceeds from permanent financing will be paid to the Advisor
as the Company acquires such permanent financing, however, no finance
coordination fees will be paid from loan proceeds from any line of credit until
such time as all net offering proceeds have been invested by the Company.
3.02 EXPENSES.
(a) In addition to the compensation paid to the Advisor pursuant to
Section 3.01 hereof, the Company shall pay directly or reimburse the Advisor, as
applicable, for all of the expenses paid or incurred by the Advisor in
connection with the services it provides to the Company pursuant to this
Agreement, including, but not limited to:
(i) Organization and Offering Expenses; provided, however, that
within 60 days after the end of the month in which an Offering
terminates, the Advisor shall reimburse the Company for any
Organization and Offering Expenses reimbursed by the Company to the
Advisor to the extent that such reimbursement exceeds 1.5% of the
Gross Proceeds raised in a completed Offering. The Advisor shall be
responsible for the payment of Organization and Offering Expenses in
excess of 1.5% of the Gross Proceeds;
(ii) Acquisition Expenses incurred in connection with the selection
and acquisition of Assets;
(iii) the actual cost of goods, services and materials used by the
Company and obtained from Persons not affiliated with the Advisor,
other than Acquisition Expenses, including brokerage fees paid in
connection with the purchase and sale of Shares;
(iv) interest and other costs for borrowed money, including
discounts, points and other similar fees;
(v) taxes and assessments on income or property and taxes as an
expense of doing business;
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(vi) costs associated with insurance required in connection with the
business of the Company or by the Board of Directors;
(vii) expenses of managing and operating Assets owned by the
Company, whether payable to an Affiliate of the Company or a
non-affiliated Person;
(viii) all expenses in connection with payments to the Board of
Directors for attendance at meetings of the Board of Directors and
Stockholders;
(ix) expenses associated with Listing or with the issuance and
distribution of Shares and other securities of the Company, such as
Selling Commissions and fees, advertising expenses, taxes, legal and
accounting fees, Listing and registration fees, and other
Organization and Offering Expenses;
(x) expenses connected with payments of Dividends in cash or
otherwise made or caused to be made by the Company to the
Stockholders;
(xi) expenses of organizing, revising, amending, converting,
modifying or terminating the Company or amending the Articles of
Incorporation or the Bylaws;
(xii) expenses of any third party transfer agent for the Shares and
of maintaining communications with Stockholders, including the cost
of preparation, printing, and mailing annual reports and other
Stockholder reports, proxy statements and other reports required by
governmental entities;
(xiii) administrative service expenses, including all costs and
expenses incurred by Advisor in fulfilling its duties hereunder.
Such costs and expenses may include reasonable wages and salaries
and other employee-related expenses of all employees of Advisor who
are engage in the management, administration, operations, and
marketing of the Company, including taxes, insurance and benefits
relating to such employees, and legal, travel and other
out-of-pocket expenses which are directly related to their services
provided hereunder; and
(xiv) audit, accounting and legal fees.
No reimbursement shall be made for costs of personnel of the Advisor or
its Affiliates to the extent that such personnel perform services in connection
with services for which the Advisor receives the Acquisition and Advisory Fee or
the Real Estate Commission.
(b) Expenses incurred by the Advisor on behalf of the Company and payable
pursuant to this Section 3.02 shall be reimbursed no less than quarterly to the
Advisor within 60 days after the end of each quarter. The Advisor shall prepare
a statement documenting the expenses of the Company during each quarter, and
shall deliver such statement to the Company within 45 days after the end of each
quarter.
3.03 OTHER SERVICES. Should the Board of Directors request that the Advisor or
any director, officer or employee thereof render services for the Company other
than set forth in Section 2.02, such services shall be separately compensated at
such rates and in such amounts as are agreed by the Advisor and the Board of
Directors, subject to the limitations contained in the Articles of
Incorporation, and shall not be deemed to be services pursuant to the terms of
this Agreement.
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3.04 REIMBURSEMENT TO THE ADVISOR. The Company shall not reimburse the Advisor
at the end of any fiscal quarter Operating Expenses to the extent that, in the
four consecutive fiscal quarters then ended (the "Expense Year") exceed (the
"Excess Amount") the greater of 2% of Average Invested Assets or 25% of Net
Income (the "2%/25% Guidelines") for such year unless the Independent Directors
determine that such excess was justified, based on unusual and nonrecurring
factors which the Independent Directors deem sufficient. If the Independent
Directors do not approve such excess as being so justified, any Excess Amount
paid to the Advisor during a fiscal quarter shall be repaid to the Company. If
the Independent Directors determine such excess was justified, then within 60
days after the end of any fiscal quarter of the Company for which total
reimbursed Operating Expenses for the Expense Year exceed the 2%/25% Guidelines,
the Advisor, at the direction of the Independent Directors, shall send to the
stockholders a written disclosure of such fact, together with an explanation of
the factors the Independent Directors considered in determining that such excess
expenses were justified. The Company will ensure that such determination will be
reflected in the minutes of the meetings of the Board of Directors. All figures
used in the foregoing computation shall be determined in accordance with
generally accepted accounting principles applied on a consistent basis.
ARTICLE IV
TERM AND TERMINATION
4.01 TERM; RENEWAL. Subject to Section 4.02 hereof, this Agreement shall
continue in force until the first anniversary of the date hereof. Thereafter,
this Agreement may be renewed for an unlimited number of successive one-year
terms upon mutual consent of the parties. It is the duty of the Board of
Directors to evaluate the performance of the Advisor annually before renewing
the Agreement, and each such renewal shall be for a term of no more than one
year.
4.02 TERMINATION. This Agreement will automatically terminate upon Listing. This
Agreement also may be terminated at the option of either party (i) immediately
upon a Change of Control or (ii) upon 60 days written notice without cause or
penalty, by either party (in either case, if termination is by the Company, then
such termination shall be upon the approval of a majority of the Board of
Directors). Notwithstanding the foregoing, the provisions of this Agreement
which provide for payment to the Advisor of expenses, fees or other compensation
following the date of termination (i.e., Sections 3.01(e) and 4.03) shall
continue in full force and effect until all amounts payable thereunder to the
Advisor are paid in full. The provisions of Sections 2.05, 2.06 and 4.03 through
6.11 shall survive the termination of this Agreement.
4.03 PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.
(a) After the Termination Date, the Advisor shall not be entitled to
compensation for further services hereunder except it shall be entitled to and
receive from the Company within 30 days after the effective date of such
termination all unpaid reimbursements of expenses, subject to the provisions of
Section 3.04 hereof, and all contingent liabilities related to fees payable to
the Advisor prior to termination of this Agreement, provided that the
Subordinated Incentive Listing Fee, if any, shall be paid in accordance with the
provisions of Section 3.01(e).
(b) Upon termination, unless such termination is by the Company because of
a material breach of this Agreement by the Advisor or occurs upon a Change of
Control, the Advisor shall be entitled to receive a payment of the Performance
Fee equal to 10.0% of the amount, if any, by which (i) the Appraised Value of
the Assets on the Termination Date, less the amount of all indebtedness secured
by the Assets, plus the total Dividends paid to Stockholders from the Company's
inception through the Termination Date, exceeds (ii) Invested Capital plus an
amount equal to the Stockholders' 8.0% Return
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from inception through the Termination Date. The Company shall pay such
Performance Fee, with interest, at such time as the Company completes the first
Sale after the Termination Date. Payment shall be made from the Net Sales
Proceeds of such Sale. Interest will accrue beginning on the Termination Date at
a rate deemed fair and reasonable by the Board of Directors on the Termination
Date. The Company shall have the option to pay such fee in the form of cash,
Shares, a promissory note, or any combination of the foregoing. If the Net Sales
Proceeds from the first Sale after the Termination Date are insufficient to pay
the Performance Fee in full, plus accrued interest, then the Performance Fee
shall be paid in part with such Net Sales Proceeds, and in part from the Net
Sales Proceeds from the next successive Sales until the Performance Fee is paid
in full, with interest. If the Performance Fee has not been paid in full within
five years from the Termination Date, then the Advisor, its successors or
assigns, may elect to convert the balance of the fee, including accrued but
unpaid interest, into Shares at a price per Share equal to the average closing
price of the Shares over the ten trading days immediately preceding the date of
such election if the Shares are Listed at such time. If the Shares are not
Listed at such time, the Advisor, its successors or assigns, may elect to
convert the balance of the fee, including accrued but unpaid interest, into
Shares at a price per Share equal to the fair market value for the Shares as
determined by the Board of Directors based upon the Appraised Value of the
Assets on the date of election.
(c) Notwithstanding the foregoing, if termination occurs upon a Change of
Control, the Advisor shall be entitled to payment of the Performance Fee equal
to 10.0% of the amount, if any, by which (i) the value of the Assets on the
Termination Date as determined in good faith by the Board of Directors,
including a majority of the Independent Directors, based upon such factors as
the consideration paid in connection with the Change of Control and the most
recent Appraised Value, less the amount of all indebtedness secured by the
Assets, plus the total Dividends paid to Stockholders from the Company's
inception through the Termination Date, exceeds (ii) Invested Capital plus an
amount equal to the Stockholders' 8.0% Return from inception through the
Termination Date. No deferral of payment of the Performance Fee may be made
under this Section 4.03(c).
(d) In the event that the Advisor disagrees with the valuation of Shares
pursuant to Section 4.03(b) where the Shares are not Listed, or the value of the
Successor Shares pursuant to Section 4.03(c) where the Successor Shares are not
Listed, for purposes of determining the number of Shares to be issued to the
Advisor following the Advisor's election to convert the balance of the
Performance Fee owed to the Advisor, then the fair market value of such Shares
shall be determined by an independent appraiser of equity value selected by the
Advisor and the Successor. If the Advisor and the Successor are unable to agree
upon an expert independent appraiser, then each of the Successor and the Advisor
shall name one appraiser and the two named appraisers shall promptly agree in
good faith to the appointment of one such appraiser whose determination shall be
final and binding on the parties.
(e) Notwithstanding Sections 4.03 (b) and (c), in the event the
Subordinated Incentive Listing Fee is paid to the Advisor following Listing, no
Performance Fee will be paid to the Advisor.
(f) The Advisor shall promptly upon termination:
(i) pay over to the Company all money collected and held for the
account of the Company pursuant to this Agreement, after deducting
any accrued compensation and reimbursement for its expenses to which
it is then entitled;
(ii) deliver to the Board of Directors a full accounting, including
a statement showing all payments collected by it and a statement of
all money held by it, covering the period following the date of the
last accounting furnished to the Board of Directors;
-15-
(iii) deliver to the Board of Directors all assets, including the
Assets, and documents of the Company then in the custody of the
Advisor; and
(iv) cooperate with, and take all reasonable actions requested by,
the Company to provide an orderly management transition.
ARTICLE V
INDEMNIFICATION
5.01 INDEMNIFICATION BY THE COMPANY. (a) The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or losses
arising in the performance of their duties hereunder, and related expenses,
including reasonable attorneys' fees, to the extent such liability, claims,
damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland, the
Articles of Incorporation and the NASAA Guidelines under the Articles of
Incorporation, the Company shall not indemnify or hold harmless the Advisor or
its Affiliates, including their respective officers, directors, partners and
employees, for any liability or loss suffered by the Advisor or its Affiliates,
including their respective officers, directors, partners and employees, nor
shall it provide that the Advisor or its Affiliates, including their respective
officers, directors, partners and employees, be held harmless for any loss or
liability suffered by the Company, unless all of the following conditions are
met: (i) the Advisor or its Affiliates, including their respective officers,
directors, partners and employees, have determined, in good faith, that the
course of conduct which caused the loss or liability was in the best interests
of the Company; (ii) the Advisor or its Affiliates, including their respective
officers, directors, partners and employees, were acting on behalf of or
performing services of the Company; (iii) such liability or loss was not the
result of negligence or misconduct by the Advisor or its Affiliates, including
their respective officers, directors, partners and employees; and (iv) such
indemnification or agreement to hold harmless is recoverable only out of the
Company's net assets and not from stockholders. Notwithstanding the foregoing,
the Advisor and its Affiliates, including their respective officers, directors,
partners and employees, shall not be indemnified by the Company for any losses,
liability or expenses arising from or out of an alleged violation of federal or
state securities laws by such party unless one or more of the following
conditions are met: (i) there has been a successful adjudication on the merits
of each count involving alleged securities law violations as to the particular
indemnitee; (ii) such claims have been dismissed with prejudice on the merits by
a court of competent jurisdiction as to the particular indemnitee; and (iii) a
court of competent jurisdiction approves a settlement of the claims against a
particular indemnitee and finds that indemnification of the settlement and the
related costs should be made, and the court considering the request for
indemnification has been advised of the position of the Securities and Exchange
Commission and of the published position of any state securities regulatory
authority in which securities of the Company were offered or sold as to
indemnification for violations of securities laws.
(b) The Articles of Incorporation provide that the advancement of
Company funds to the Advisor or its Affiliates, including their respective
officers, directors, partners and employees, for legal expenses and other costs
incurred as a result of any legal action for which indemnification is being
sought is permissible only if all of the following conditions are satisfied: (i)
the legal action relates to acts or omissions with respect to the performance of
duties or services on behalf of the Company; (ii) the legal action is initiated
by a third-party who is not a stockholder or the legal action is initiated by a
stockholder acting in his or her capacity as such and a court of competent
jurisdiction specifically approves such advancement; (iii) the Advisor or its
Affiliates, including their respective officers, directors, partners and
employees, undertake to repay the advanced funds to the Company together with
the applicable legal rate of interest thereon, in cases in which such Advisor or
its Affiliates, including their respective officers, directors, partners and
employees, are found not to be entitled to indemnification.
(c) Notwithstanding the provisions of this Section 5.01, the Advisor
shall not be entitled to indemnification or be held harmless pursuant to this
Section 5.01 for any activity which the Advisor shall be required to indemnify
or hold harmless the Company pursuant to Section 5.02.
5.02 INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify and hold harmless
the Company from contract or other liability, claims, damages, taxes or losses
and related expenses including attorneys' fees, to the extent that such
liability, claims, damages, taxes or losses and related expenses are not fully
reimbursed by insurance and are incurred by reason of the Advisor's bad faith,
fraud, misfeasance, misconduct, negligence or reckless disregard of its duties,
but the Advisor shall not be held responsible for any action of the Board of
Directors in following or declining to follow any advice or recommendation given
by the Advisor.
ARTICLE VI
MISCELLANEOUS
6.01 ASSIGNMENT TO AN AFFILIATE. This Agreement may be assigned by the Advisor
to an Affiliate of the Advisor with the approval of a majority of the Board of
Directors (including a majority of the Independent Directors). The Advisor may
assign any rights to receive fees or other payments under this Agreement without
obtaining the approval of the Board of Directors. This Agreement shall not be
assigned by the Company without the consent of the Advisor, except in the case
of an assignment by the Company to a corporation or other organization which is
a successor to all of the assets, rights and obligations of the Company, in
which case such successor organization shall be bound hereunder and by the terms
of said assignment in the same manner as the Company is bound by this Agreement.
This Agreement shall be binding on successors to the Company resulting from a
Change of Control or sale of all or substantially all the assets of the Company
or the Partnership, and shall likewise be binding upon any successor to the
Advisor.
6.02 RELATIONSHIP OF ADVISOR AND COMPANY. The Company and the Advisor are not
partners or joint venturers with each other, and nothing in this Agreement shall
be construed to make them such partners or joint venturers or impose any
liability as such on either of them.
-16-
6.03 NOTICES. 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 required by the Articles of
Incorporation, the Bylaws, or accepted by the party to whom it is given, and
shall be given by being delivered by hand or by overnight mail or other
overnight delivery service to the addresses set forth herein:
To the Directors and to the Company: Xxxx Credit Property Trust II, Inc.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer and
President
To the Advisor: Xxxx REIT Advisors II, LLC
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer and
President
Either party shall, as soon as reasonably practicable, give notice in writing to
the other party of a change in its address for the purposes of this Section
6.03.
6.04 MODIFICATION. This Agreement shall not be changed, modified, or amended, in
whole or in part, except by an instrument in writing signed by both parties
hereto, or their respective successors or assignees.
6.05 SEVERABILITY. The provisions of this Agreement are independent of and
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
6.06 CHOICE OF LAW; VENUE. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of Arizona, and venue
for any action brought with respect to any claims arising out of this Agreement
shall be brought exclusively in Maricopa County, Arizona.
6.07 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing signed by each of the parties
hereto.
6.08 WAIVER. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
6.09 GENDER; NUMBER. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
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6.10 HEADINGS. The titles and headings of sections and subsections contained in
this Agreement are for convenience only, and they neither form a part of this
Agreement nor are they to be used in the construction or interpretation hereof.
6.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
the counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
6.12 INITIAL INVESTMENT. The Advisor or one of its Affiliates has contributed
$200,000 (the "INITIAL INVESTMENT") in exchange for the initial issuance of
Shares of the Company. The Advisor or its Affiliates may not sell any of the
Shares purchased with the Initial Investment while the Advisor acts in an
advisory capacity to the Company. The restrictions included above shall not
apply to any Shares acquired by the Advisor or its Affiliates other than the
Shares acquired through the Initial Investment. Neither the Advisor nor its
Affiliates shall vote any Shares they now own, or hereafter acquires, in any
vote for the election of Directors or any vote regarding the approval or
termination of any contract with the Advisor or any of its Affiliates.
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the date and year first above written.
XXXX CREDIT PROPERTY TRUST II, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxx
Chief Executive Officer and President
XXXX REIT ADVISORS II, LLC
By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxx
Chief Executive Officer and President
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