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Exhibit 10(a)
Advisory Agreement
Between
RRF Limited Partnership
and
Mid-America ReaFund Advisors, Inc.
This Agreement made as of this 31st day of January, 1998, between RRF
LIMITED PARTNERSHIP, a Delaware limited partnership ("RRF-LP"), and MID-AMERICA
REAFUND ADVISORS, INC., an Ohio corporation (the "Adviser");
WITNESSETH:
WHEREAS, RRF-LP was established in Delaware by a Certificate of Limited
Partnership on April 9, 1997;
WHEREAS, RRF-LP desires to avail itself of the experience, sources of
information, advice and assistance of the Adviser and to have the Adviser
undertake the duties and responsibilities hereinafter set forth, on behalf of
and subject to the supervision of the trustees of Realty ReFund Trust, the sole
general partner of RRF-LP (the "Trustees"), as provided herein; and
WHEREAS, the Adviser is willing to undertake to render such services,
subject to the supervision of the Trustees, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed as follows:
1. Duties of Adviser. The Adviser shall consult with the Trustees and
shall, at the request of the Trustees or the officers of RRF-LP, furnish advice
and recommendations in respect of all aspects of the business and affairs of
RRF-LP. In general, the Adviser shall inform the Trustees of any factors which
come to its attention which would influence the policies of RRF-LP. Subject to
the supervision of the Trustees and consistent with the provisions of the
Declaration of Trust, the Adviser shall use its best efforts to:
(a) present to RRF-LP a continuing and suitable investment
program and opportunities to acquire investments of which the Adviser
is aware, which are consistent with any investment program adopted by
the Trustees from time to time and which the management of the Adviser
believes would be reasonably attractive to RRF-LP, and furnish the
Trustees with advice in respect of the acquiring, holding and disposing
of investments including commitments therefor;
(b) administer the day-to-day investment operations of RRF-LP
and perform or supervise the performance of such other administrative
functions in connection with the management of RRF-LP as may be agreed
upon by the Adviser and the Trustees;
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(c) serve as RRF-LP's investment adviser in connection with
policy decisions to be made by the Trustees and, as requested, furnish
reports to the Trustees and provide research and economic and
statistical data in connection with RRF-LP's investments and investment
policies;
(d) on behalf of RRF-LP, investigate, select and conduct
relations with borrowers, lenders, consultants, accountants, mortgage
loan originators, brokers, mortgagors and other mortgage and investment
participants, correspondents and servicers, property managers,
attorneys, underwriters, appraisers, insurers, corporate fiduciaries,
escrow agents, depositories, custodians, agents for collection, banks,
savings and loan associations, investors, builders and developers,
sellers and buyers of investments and persons acting in any other
capacity deemed by the Trustees desirable, and enter into contracts
with, retain and supervise services performed by, such parties in
connection with investments which have been or may be acquired or
disposed of by RRF-LP and substitute any such party or itself for any
such other party or for itself;
(e) upon the request of the Trustees, act as attorney-in-fact
or agent of RRF-LP in acquiring and disposing of investments,
disbursing and collecting the funds, paying the debts and fulfilling
the obligations of RRF-LP, and handling, prosecuting and selling any
claims of RRF-LP, including foreclosing, participating in bankruptcy or
other reorganization proceedings, and otherwise enforcing mortgage and
other liens securing investments, and exercise its own sound discretion
in doing so, or obtain for RRF-LP the services of others to so act;
(f) assist in negotiations on behalf of RRF-LP with investment
banking firms and other institutions or investors for public or private
sales of securities of RRF-LP or for other loans or other financing on
behalf of RRF-LP, but in no event in such a way that the Adviser shall
be acting as a broker, dealer or underwriter of securities of RRF-LP;
(g) upon request of the Trustees, invest or reinvest any
money of RRF-LP;
(h) provide office space and equipment and personnel as
required for the performance of the foregoing services as Adviser:
(i) as requested by the Trustees, make reports to the
Trustees on its performance of the foregoing services; and
(j) obtain for RRF-LP such services as may be required for
property management, mortgage servicing, construction and development
loan disbursements and other activities relating to the investment
portfolio of RRF-LP.
2. No Partnership or Joint Venture. RRF-LP and the Adviser are not, and
shall not be deemed to be, partners or joint venturers with each other.
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3. Records. The Adviser shall keep proper books of account and records
relating to services performed hereunder which shall be accessible for
inspection by RRF-LP at any time during ordinary business hours.
4. REIT Qualification. Anything else in this Agreement to the contrary
notwithstanding, the Adviser shall refrain from any action which, in its
reasonable judgment, or in the judgment of the Trustees of which the Adviser has
written notice, would adversely affect the status of Realty ReFund Trust as a
real estate investment trust as defined and limited in Sections 856, 857 and 858
of the Code or which would violate any law, rule or regulation of any
governmental body or agency having jurisdiction over RRF-LP or its securities or
which would not be permitted by the Declaration of Trust.
5. Bank Accounts. The Adviser may establish one or more bank accounts
in its own name and may deposit into and disburse from such accounts, any money
on behalf of RRF-LP, under such terms and conditions as the Trustees may
approve, provided that no funds in any such account shall be commingled with
funds of the Adviser; and the Adviser shall from time to time render appropriate
accounting of such deposits and payments to the Trustees and to the auditors of
RRF-LP.
6. Bond. The Adviser shall maintain a fidelity bond with a responsible
surety company in such reasonable amount as may be required by the Trustees from
time to time covering its officers, employees and agents handling funds and
records of RRF-LP. Such bond shall inure to the benefit of RRF-LP in respect of
losses of such property from acts of such persons through theft, embezzlement,
fraud, negligence, error or otherwise.
7. Information Furnished Adviser. RRF-LP shall keep the Adviser
informed in writing concerning the investment and financing policies of RRF-LP.
RRF-LP shall notify the Adviser promptly in writing of their intention to make
any new investments or to dispose of any existing investments. RRF-LP shall
furnish the Adviser with a certified copy of all financial statements, a signed
copy of each report prepared by independent public accountants, and such other
information with regard to its affairs as the Adviser may reasonably request.
8. Definitions. As used herein, the following terms shall have the
meanings set forth below:
(a) "Affiliate" as used herein shall have the meaning set
forth in Section 1.1 of RRF-LP's First Amended and Restated Agreement
of Limited Partnership as in effect on the date hereof.
(b) "Average Book Value" for any period shall mean the
arithmetic average of the aggregate Book Value of the assets reflected
in the computation at the opening of the first and at the close of the
last business day of each calendar month during the period to which
such computation relates.
(c) "Average Net Worth" shall mean the arithmetic average of
the amounts in the partners' accounts on the books of RRF-LP, plus the
accumulated non-cash reserves for
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depreciation, depletion and amortization shown on the books of RRF-LP,
at the close of the last business day of each calendar month during the
period to which such computation relates.
(d) "Book Value" of an asset shall mean the value of such
asset on the books of RRF-LP, before provision for amortization,
depreciation or depletion and before deducting any indebtedness or
other liability in respect thereof, except that depreciable assets
shall be valued at the lesser of fair market value, in the judgment of
the Trustees, or cost.
(e) "Fiscal Year" shall mean any period of RRF-LP for which
any income tax return is submitted to the Internal Revenue Service and
which is treated by the Internal Revenue Service as a reporting period.
(f) "Invested Assets" shall mean the appraised value of
RRF-LP's total assets (without deduction of any liabilities) plus the
undisbursed commitments of RRF-LP in respect of closed loans and other
closed investments, but excluding good will and other intangible
assets, cash, cash items, obligations of municipal, state and federal
governments and governmental agencies other than obligations secured
by a lien on real property, or to be acquired by such governments or
governmental agencies and securities of governmental agencies issuing
securities which securities are balanced by a pool of mortgages and,
in respect of Wrap-Around Loans, the principal amount of the prior
indebtedness.
(g) "Net Income" for any period shall mean the net income of
RRF-LP for such period computed on the basis of its results of
operations for such period excluding gains and losses from the
disposition of assets of RRF-LP, and after deduction of all expenses
other than any compensation payable to the Adviser pursuant to Sections
9, 10 and 11 hereof and provision for depreciation, amortization and
depletion.
(h) "Net Profits" for any period shall mean the gross earned
income of RRF-LP for such period (exclusive of gains and losses from
the disposition of capital assets of RRF-LP), minus all expenses
(including reasonable reserves set aside by the Trustees out of
earnings) other than non-cash provision for depreciation, depletion and
amortization, incentive compensation payable to the Adviser pursuant to
Section 10 hereof, and any taxes on RRF-LP's income and, in respect of
any real estate equities owned by RRF-LP, minus all amounts expended
for mortgage amortization.
(i) "Operating Expenses" for any Fiscal Year shall mean the
aggregate annual expenses of every character regarded as operating
expenses in accordance with generally accepted accounting principles,
as determined by the independent accountants who shall have reported on
the financial statements of RRF-LP for such Fiscal Year, including
compensation payable to the Adviser but excluding the expenses set
forth in clauses (b) through (i) inclusive of Section 14 hereof and
reserves for amortization, depreciation, depletion and losses and
provisions for losses.
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All calculations made in accordance with this Section 8 shall be based
on statements (which may be unaudited, except as provided herein) prepared on an
accrual basis consistent with generally accepted accounting principles,
regardless of whether RRF-LP may also prepare statements on a different basis.
9. Regular Compensation. On or before the 15th business day of each
calendar month, the Trustees shall pay to the Adviser as compensation for the
services rendered to RRF-LP hereunder (a) a fee at the rate of 1/12 of 1% of the
Invested Assets of RRF-LP for the next preceding calendar month and (b) 15% of
the amount of any unrefunded commitment fees received by RRF-LP in respect of
mortgage loan commitments which RRF-LP was not required to fund and which
expired within the next preceding calendar month.
10. Incentive Compensation. In order to reward further the Adviser for
performance hereunder, the Trustees shall also pay to the Adviser, on or before
the 15th day after the completion of the annual audit of RRF-LP's financial
statements for each Fiscal Year, an incentive fee equal to the sum of (a) 10% of
the amount, if any, by which the Net Profits for such Fiscal Year exceed 8% of
the monthly Average Net Worth for such Fiscal Year and (b) 10% of (i) the net
realized capital gains of RRF-LP for such year less (ii) accumulated net
realized capital loss. "Net realized capital gain" from the sale or other
disposition of an asset shall be deemed to be the lesser of (i) the amount by
which the net proceeds after taxes received by RRF-LP (including the proceeds of
any financing) exceed the value of such asset on the books of RRF-LP at the time
of sale (after deducting all liabilities relating thereto) or (ii) the amount by
which such net proceeds exceed the sum of the value of the consideration
originally paid for such asset by RRF-LP plus any additional capital
expenditures by RRF-LP on such asset.
11. Compensation for Additional Services. If RRF-LP shall request the
Adviser, or any officer or employee of the Adviser, to render services for
RRF-LP other than those required to be rendered by the Adviser hereunder, such
additional services, if performed, will be compensated separately on terms to be
agreed upon between such party and RRF-LP from time to time. To the extent the
Adviser or any affiliate of the Adviser performs any loan servicing, loan
administration, property management or other similar services, the rate of
compensation for such services shall be approved by the majority of the Trustees
who are not affiliated with the Adviser and shall not exceed the rate at which
qualified unaffiliated persons are then performing such services for similar
investors in the same geographic area. Neither the Adviser nor any of its
Affiliates will receive any brokerage fees in connection with any real property
or other assets purchased by, or sold to, RRF-LP. Any other remuneration
received by any such person in connection with any such purchase or sale shall
be deducted from the compensation payable to the Adviser.
12. Statements. The Adviser shall furnish to RRF-LP not later than the
tenth day of each calendar month, beginning with the second calendar month of
the term of this Agreement, a statement showing the computation of any
compensation payable to it during such month under Section 9 hereof. The Adviser
shall furnish to RRF-LP not later than the 30th day following the end of each
Fiscal Year a statement showing the computation of the fees, if any, payable in
respect of such Fiscal Year under Sections 10 and 11 hereof. The final
settlement of compensation payable
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under Sections 10 and 11 hereof for each Fiscal Year shall be subject to
adjustment in accordance with, and upon completion of, the annual audit of
RRF-LP's financial statements.
13. Expenses of the Adviser. Without regard to the amount of
compensation received hereunder by the Adviser, the Adviser shall bear the
following expenses:
(a) salaries and other employment expenses of the personnel
employed by the Adviser to assist it in performing its obligations
hereunder and of officers and employees of RRF-LP who are affiliates of
the Adviser;
(b) travel and other expenses incurred by directors, officers
and employees of the Adviser and of Trustees, officers and employees of
RRF-LP who are affiliates of the Adviser;
(c) advertising expenses, if any, incurred by the Adviser in
seeking investments for RRF-LP;
(d) rent, telephone, utilities, office furniture and
equipment (including computers, to the extent utilized) and other
office expenses of the Adviser and RRF-LP, except as any of such
expenses relate to an office maintained by RRF-LP separate from the
office of the Adviser; and
(e) miscellaneous administrative expenses relating to
performance by the Adviser of its functions hereunder.
14. Expenses of RRF-LP. Except as expressly otherwise provided in this
Agreement RRF-LP shall pay all its expenses not assumed by the Adviser and
without limiting the generality of the foregoing it is agreed that the following
expenses of RRF-LP shall be paid by RRF-LP:
(a) salaries and other employment expenses of the personnel
employed by RRF-LP who are not affiliates of the Adviser, expenses
incurred in attending Trustees' meetings paid to all Trustees, fees and
travel and other expenses incurred by Trustees, officers and employees
of RRF-LP who are not affiliates of the Adviser and the cost of
Trustees, liability insurance;
(b) the cost of borrowed money;
(c) taxes on income, real property and all other taxes
applicable to RRF-LP;
(d) legal, auditing, underwriting, transfer agent's, warrant
agent's, registrants and indenture trustee's and other fees, and
listing, registration, printing and other expenses and taxes incurred
in connection with the issuance, distribution, transfer, registration
and stock exchange listing of RRF-LP's securities;
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(e) fees and expenses paid to independent contractors
employed by or on behalf of RRF-LP;
(f) costs of insurance;
(g) the expenses of organizing or terminating RRF-LP;
(h) all expenses connected with distributions and
communications to holders of securities of RRF-LP and the other
bookkeeping and clerical work necessary in maintaining relations with
holders of securities, including the cost of printing and mailing
checks, certificates for securities, proxy solicitation materials and
reports to such holders;
(i) expenses directly connected with the acquisition,
disposition and ownership of mortgage loans or other property,
including, to the extent not paid by borrowers from RRF-LP, the costs
of appraisal, legal services, brokerage and sales commissions, as well
as the costs of foreclosure, maintenance, repair and improvement of
property;
(j) to the extent not paid by borrowers from RRF-LP, loan
administration and mortgage servicing fees; and
(k) general legal, accounting and auditing fees and expenses.
15. Refund by Adviser. On or before the 15th day after the completion
of the annual audit of RRF-LP's financial statements for each Fiscal Year, the
Adviser will refund to RRF-LP the amount, if any, by which the Operating
Expenses of RRF-LP for such Fiscal Year exceeded the lesser of (a) 1-1/2% of the
Invested Assets of RRF-LP for such Fiscal Year or (b) 25% of the Net Income of
RRF-LP for such Fiscal Year.
16. Other Activities of The Advisor. The Adviser shall not act as the
investment adviser for any other person or entity ("person"). However, the
Adviser may act as an investment adviser and perform other services for persons
other than RRF-LP in situations in which such persons are participating in
investment with RRF-LP. No Affiliate of the Adviser shall enter into an
investment advisory contract or contract to perform other services with any
other real estate investment trust or other person the investment policy of
which is substantially similar to that of RRF-LP. Furthermore any person who (i)
is an officer, director or employee of the Adviser, (ii) holds beneficially,
directly or indirectly, 1% or more of the outstanding capital stock or other
equity interests of the Adviser, (iii) is an officer, director, employee,
partner, or trustee of a corporation, partnership or trust which either holds
beneficially, directly or indirectly, 1% or more of the outstanding capital
stock or other equity interests of the Adviser or (iv) controls, is controlled
by, or under common control with the Adviser, will offer RRF-LP a right of first
refusal to the full extent of any investment opportunity available to such
person which is consistent with the investment policies of RRF-LP.
The Trustees may request the Adviser to engage in certain other
activities which complement RRF-LP's investments and the Adviser may provide
services requested by the borrowers or
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prospective borrowers of RRF-LP. The Adviser may receive compensation or
commissions therefor from RRF-LP and other persons.
Directors, officers, employees and agents of the Adviser or of
affiliates of the Adviser may serve as partners, officers, employees or agents
of RRF-LP. When executing documents or otherwise acting in such capacities for
RRF-LP, such persons shall use their respective titles in RRF-LP.
17. Term; Termination of Agreement. This Agreement shall continue in
force for a period of 24 months from the date hereof and thereafter it may be
extended from year to year by the affirmative vote of a majority of the Trustees
who are not affiliates of the Adviser. Notice of renewal shall be given in
writing by the Trustees to the Adviser not less than three months before the
expiration of this Agreement or of any extension thereof. Notwithstanding any
other provisions to the contrary, this Agreement may be terminated for any
reason upon 60 days' written notice by RRF-LP to the Adviser or 120 days'
written notice by the Adviser to RRF-LP, in the former case (i) by the vote of a
majority of all Trustees; (ii) by the vote of a majority of the Trustees who are
not affiliates of the Adviser; or (iii) by the vote of the holders of not less
than a majority of the partnership Units of RRF-LP then outstanding and entitled
to vote, at a meeting called for such purpose.
18. Amendments. This Agreement shall not be modified or terminated
except by an instrument in writing signed by both parties hereto, or their
respective successors or assigns, or otherwise as provided herein.
19. Assignment. RRF-LP may terminate this Agreement forthwith in the
event of its assignment by the Adviser except an assignment to a successor
organization which takes over substantially all of the property and carries on
the affairs of the Adviser. This Agreement shall not be assignable by RRF-LP
without the consent of the Adviser, except in the case of assignment by RRF-LP
to a corporation, trust or other organization which is a successor to RRF-LP.
Any assignment of this Agreement by either party shall bind the assignee here-
under in the same manner as the assignor is bound hereunder.
20. Default, Bankruptcy, etc. At the option of the Trustees, this
Agreement shall be terminated immediately upon written notice of termination
from the Trustees to the Adviser if any of the following events shall occur:
(a) If the Adviser shall violate any provision of this
Agreement and, after written notice of such violation, shall not cure
such default within thirty days; or
(b) If the Adviser shall be adjudged bankrupt or insolvent by
a court of competent jurisdiction, for any order shall be made by a
court of competent jurisdiction for the appointment of a receiver,
liquidator or trustee of the Adviser or of all or substantially all of
its property by reason of the foregoing, or approving any petition
filed against the Adviser for its reorganization; or
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(c) If the Adviser shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
Federal bankruptcy laws, or 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.
The Adviser agrees that if any of the events specified in subsections
(b) and (c) of this Section 20 shall occur, it will give written notice thereof
to the Trustees within seven days after the occurrence of such event.
21. Action Upon Termination. The Adviser shall not be entitled to
compensation after the date of termination of this Agreement for further
services hereunder but shall be paid all compensation accruing to the date of
termination. The Adviser shall forthwith upon such termination:
(a) pay over to RRF-LP all moneys collected and held for the
account of RRF-LP pursuant to this Agreement, after deducting any
accrued compensation and reimbursement for its expenses to which it is
then entitled;
(b) deliver to the Trustees a full accounting, including a
statement showing all payments collected by it and a statement of all
moneys held by it, covering the period following the date of the last
accounting furnished to the Trustees; and
(c) deliver to the Trustees all property and documents of
RRF-LP then in the custody of the Adviser.
22. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of Ohio as at the time in effect.
23. Miscellaneous. The Adviser assumes no responsibility under this
Agreement other than to render the services called for hereunder in good faith,
and shall not be responsible for any action of the Trustees in following or
declining to follow any advice or recommendations of the Adviser. None of the
Adviser, its owners, directors, officers or employees shall be liable to RRF-LP,
the Trustees or the holders of securities of RRF-LP except by reason of acts
constituting bad faith, willful misfeasance, gross negligence or reckless
disregard of their duties.
24. Notice. Any communications given hereunder shall be in writing
delivered at the following addresses of the parties hereto:
RRF-LP: 0000 Xxxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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The Adviser: 0000 Xxxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: President
In each case with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Either 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 24.
IN WITNESS WHEREOF, RRF Limited Partnership and Mid-America ReaFund
Advisors, Inc., by an authorized officer, in each case thereunto duly
authorized, have signed these presents all as of the day and year first above
written.
Attest: RRF LIMITED PARTNERSHIP
By: /s/ XXXXX X. XXXXXXX By: REALTY REFUND TRUST, its sole
-------------------- general partner
Xxxxx X. Xxxxxxx
Assistant Secretary
By: /s/ XXXXXXX X. XXXXX
--------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
Attest: MID-AMERICA REAFUND ADVISORS, INC.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXX
-------------------- ------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxx
Assistant Secretary President
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