EXHIBIT 10.1
FORM OF ADVISORY AGREEMENT
XXXXX TOTAL RETURN REIT, INC.
THIS ADVISORY AGREEMENT (this "AGREEMENT"), dated as of [-], 2007, and
effective as of the date the Registration Statement (as defined below) is
declared effective by the Securities and Exchange Commission (the "EFFECTIVE
DATE"), is by and among XXXXX TOTAL RETURN REIT, INC., a Maryland corporation
(the "COMPANY"), XXXXX TOTAL RETURN OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership (the "PARTNERSHIP"), and XXXXX ASSET MANAGEMENT, INC., a
Georgia corporation (the "ADVISOR").
WITNESSETH
WHEREAS, the Company is filing with the Securities and Exchange
Commission (the "SEC") a Registration Statement on Form S-11 (the "REGISTRATION
STATEMENT") covering the initial public offering of its common stock, par value
$0.01 per share (the "SHARES");
WHEREAS, the Company intends to qualify as a REIT (as defined below),
and intends to invest its funds in investments permitted by the terms of the
Company's Articles of Incorporation and Sections 856 through 860 of the Code (as
defined below);
WHEREAS, each of the Company and the Partnership is a "qualified
client" as defined in Rule 205-3(d) under the Investment Advisers Act of 1940,
as amended;
WHEREAS, the Company is and at all times during the term of this
Agreement will be an investment adviser duly registered under the Investment
Advisers Act of 1940, as amended, and has and at all times during the term of
this Agreement will have all governmental, regulatory, self-regulatory and
exchange licenses, registrations, memberships and approvals required to perform
its obligation xxxxxx this Agreement and any other licenses, registrations,
memberships and approvals that may be required by the applicable jurisdictions
in which the Advisor operates or performs its obligations under this Agreement;
WHEREAS, the Company is the general partner of the Partnership and
intends to conduct all of its business and make all of its investments in
Properties through the Partnership;
WHEREAS, the Company and the Partnership desire to avail themselves 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, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
definitions hereinafter indicated:
ADVISOR. Xxxxx Asset Management, Inc., a Georgia corporation registered
as an investment adviser under the Investment Advisers Act of 1940, as amended
(the "ADVISERS ACT"), any successor advisor to the Company, the Partnership or
any Person registered as an investment adviser under the Advisers Act to which
Xxxxx Asset Management, Inc. or any successor advisor subcontracts any of its
functions.
ADVISORY FEE. The fee payable to the Advisor pursuant to Section 8(a)
hereof.
AFFILIATE OR AFFILIATED. An Affiliate of another Person includes only
the following: (i) any Person directly or indirectly controlling, controlled by,
or under common control with such other Person; (ii) any Person directly or
indirectly owning, controlling, or holding with the power to vote 10% or more of
the outstanding voting securities of such other Person; (iii) any legal entity
for which such Person acts as an executive officer, director, trustee, or
general partner, (iv) 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; and (v) any executive officer, director, trustee, or
general partner of such other Person. An entity shall not be deemed to control
or be under common control with an Advisor-sponsored program unless (i) the
entity owns 10% or more of the voting equity interests of such program or (ii) a
majority of the board (or equivalent governing body) of such program is
comprised of Affiliates of the entity.
ARTICLES OF INCORPORATION. The Amended and Restated Articles of
Incorporation of the Company under Title 2 of the Corporations and Associations
Article of the Annotated Code of Maryland, dates as of [-], 2007, as amended
from time to time.
ASSET SPECIFIC FEES AND EXPENSES. Expenses related to (i) the
acquisition, leasing, improvement, construction or management of real property,
including, real estate commissions on resale of property, and other expenses
connected with the acquisition, disposition, and ownership of real estate
interests, mortgage loans or other property (such as the costs of foreclosure,
insurance premiums, legal services, management, maintenance, repair and
improvement of property) and (ii) the purchase or sale of mortgage instruments,
CMBS and other real estate related securities.
AVERAGE INVESTED ASSETS. For a specified period, the average of the
aggregate book value of the assets of the Company invested, directly or
indirectly, in Properties and Loans secured by real estate before reserves for
depreciation, depletion, 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.
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BOARD OF DIRECTORS OR BOARD. The persons holding such position, as of
any particular time, under the Articles of Incorporation of the Company, whether
they be the Directors named therein or additional or successor Directors.
BYLAWS. The bylaws of the Company, as the same are in effect from time
to time.
CAUSE. With respect to the termination of this Agreement, fraud,
criminal conduct, willful misconduct or willful or grossly negligent breach of
fiduciary duty by the Advisor, or a material breach of this Agreement by the
Advisor, provided that (i) the Advisor does not cure any such material breach
within 60 days of receiving notice of such material breach from the Company or
the Partnership, or (ii) such material breach is not of a nature that can be
remedied within such period.
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. Xxxxx Total Return REIT, Inc., a corporation organized under
the laws of the State of Maryland.
CUSTODIAN. Any custodian appointed by the Company or by the Advisor
with the approval of the Company to hold and execute transactions with respect
to securities, and any subcustodian that the Company or any Custodian shall deem
appropriate
DIRECT FEES AND EXPENSES. All costs and expenses incurred by the
Company, as determined under generally accepted accounting principles, which in
any way are related to the operation of the Company or to Company business other
than Asset Specific Fees and Expenses.
DIRECTOR. A member of the Board of Directors of the Company.
INDEPENDENT DIRECTOR. A Director who is not and within the last two
years has not been directly or indirectly associated with the Advisor by virtue
of (i) ownership of an interest in the Advisor or its Affiliates, (ii)
employment by the Advisor or its Affiliates, (iii) service as an officer or
director of the Advisor or its Affiliates, (iv) performance of services, other
than as a Director, for the Company, (v) service as a director or trustee of
more than three real estate investment trusts advised by the Advisor, or (vi)
maintenance of a material business or professional relationship with the Advisor
or any of its Affiliates. A business or professional relationship is considered
material if the gross revenue derived by the Director from the Advisor and
Affiliates exceeds 5% of either the Director's annual gross revenue during
either of the last two years or the Director's net worth on a fair market value
basis. An indirect relationship shall include circumstances in which a
Director's spouse, parents, children, siblings, mothers or fathers-in-law, sons
or daughters-in-law, or brothers or sisters-in-law is or has been associated
with the Advisor, any of its Affiliates, or the Company.
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LIQUIDITY EVENT. The merger of the Company with another Person, other
than an Affiliate of the Company or the sale or liquidation of all of the
Company's assets.
LISTING. The term "LISTING" shall mean that the Shares have been
approved for trading on (i) the New York Stock Exchange, the American Stock
Exchange or the Global Market or the Global Select Market of the Nasdaq Stock
Market (or any successor entities) or (ii) a national securities exchange (or
tier or segment thereof) that has listing standards that the SEC has determined
by rule are substantially similar to the listing standards applicable to
securities described in Section 18(b)(1)(A) of the Securities Act of 1933, as
amended. Upon such Listing, the Shares shall be deemed Listed.
NAV. The Value of the assets of the Company, less the Value of the
liabilities of the Company, calculated as of the end of each business day in a
given period, and, with respect to days other than business days, the NAV for
the most recent previous business day and aggregated, divided by the number of
days in the period.
NASAA GUIDELINES. The NASAA Statement of Policy Regarding Real Estate
Investment Trusts as in effect on the date hereof.
NET INCOME. For any period, the total revenues applicable to such
period, less the total expenses applicable to such period excluding additions to
reserves for depreciation, depletion, bad debts or other similar non-cash
reserves; provided, however, Net Income for purposes of calculating total
allowable Direct Fees and Expenses shall exclude the gain from the sale of the
Company's assets.
PARTNERSHIP. Xxxxx Total Return Operating Partnership, L.P., a Delaware
limited partnership formed to own and operate properties on behalf of the
Company.
PARTNERSHIP AGREEMENT. The Agreement of Limited Partnership of the
Partnership, as amended from time to time, between the Company, as General
Partner and the Advisor and the Company, as the Limited Partners.
PERSON. An individual, corporation, partnership, estate, trust
(including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a
portion of a trust permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity, or any government or any agency or political subdivision
thereof, and also includes a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
PROPERTY OR PROPERTIES. Any 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, or any portion thereof, transferred or conveyed to the Company or the
Partnership, either directly or indirectly, or such investments the Board of
Directors and the Advisor mutually designate as Properties to the extent such
investments could be classified as either Properties or Real Estate Related
Securities.
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PROPERTY MANAGER. Any entity that has been retained to perform and
carry out property rental, leasing, operation and management services at one or
more of the Properties, excluding persons, entities or independent contractors
retained or hired to perform facility management or other services or tasks at a
particular Property.
REIT. A real estate investment trust under Sections 856 through 860 of
the Code.
SPECIAL PARTNERSHIP UNITS. The separate series of limited partnership
interests issued to Xxxxx Asset Management, Inc. pursuant to the Partnership
Agreement as referenced in Section 8(c).
STOCKHOLDERS. The registered holders of the Shares.
2%/25% GUIDELINES. The requirement pursuant to the NASAA Guidelines
that, in any 12-month period, total Direct Fees and Expenses and Asset Specific
Fees and Expenses not exceed the greater of 2% of the Company's Average Invested
Assets during such 12-month period or 25% of the Company's Net Income over the
same 12-month period.
VALUE. With respect to (i) an asset, the value of that asset as
determined in accordance with the valuation guidelines adopted by the Board of
Directors of the Company, or (ii) a liability, the fair market value of that
liability.
2. APPOINTMENT. The Company and the Partnership appoints the Advisor to
serve as its advisor and asset manager as of the Effective Date, on the terms
and conditions set forth in this Agreement, and the Advisor accepts such
appointment as of the Effective Date.
3. DUTIES AND AUTHORITY OF THE ADVISOR. Subject to the restrictions
included in Sections 4 and 7 and to the continuing and exclusive authority of
the Board of the Company and the general partner of the Partnership, the Company
and the Partnership hereby delegate to the Advisor the authority to, and the
Advisor hereby agrees to, either directly or by engaging an Affiliate or a third
party, use its reasonable efforts to:
(a) serve as the Company's and the Partnership's investment and
financial adviser with respect to the allocation of the Company's assets among
Properties, mortgage instruments, and various types of real estate related
securities, including but not limited to:
(i) provide research and economic and statistical data in
connection with the Company's assets and investment policies; and
(ii) engage and supervise investment advisers with suitable
experience for managing and advising the Company's portfolios of real
estate related securities;
(b) present to the Company and the Partnership potential Property
investment opportunities to provide a continuing and suitable investment program
consistent with (i) the investment objectives and policies of the Company as
determined and adopted from time to time by the Board and (ii) the investment
allocation method described at Section 10(b) of this
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Agreement and manage, administer, promote, maintain, and improve the Properties
on an overall portfolio basis in a diligent manner, including but not limited
to:
(i) oversee the performance by a third party or affiliated
Property Manager of its duties, including collection of payments due
from sales to third parties under contracts related to use of the
Property and other assets of the Company and payment of Property
expenses and maintenance;
(ii) conduct periodic on-site property visits to some or all
(as the Advisor deems reasonably necessary) of the Properties to
inspect the physical condition of the Properties and to evaluate the
performance of the Property Manager of its duties;
(iii) review, analyze and comment upon the operating budgets,
capital budgets, and leasing plans prepared and submitted by the
Property Manager and aggregate these property budgets into the
Company's overall budget;
(iv) review and analyze on-going financial information
pertaining to each Property and the overall portfolio of Properties;
(v) if a transaction requires approval by the Board of
Directors, deliver to the Board of Directors all documents requested by
them in their evaluation of the proposed investment in the Property;
(vi) formulate and oversee the implementation of strategies
for the administration, promotion, management, operation, maintenance,
improvement, financing and refinancing, marketing, leasing, and
disposition of Properties on an overall portfolio basis;
(vii) subject to the provisions of Sections 3(m) and 4 hereof,
(A) locate, analyze and select potential investments in Properties, (B)
structure and negotiate the terms and conditions of transactions
pursuant to which investment in Properties will be made; (C) make
investments in Properties on behalf of the Company or the Partnership
in compliance with the investment objectives and policies of the
Company; (D) 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, Property; (E) negotiate and enter into leases, supply agreements
and other income-producing contracts relating to third party use of the
Property and other assets of the Company; (F) enter into service
contracts for Property, including oversight of Affiliated companies
that perform property management services for the Company and the
Partnership; (G) oversee the non-affiliated Property Managers and other
non-affiliated Persons who perform services for the Company; and (H) to
the extent necessary, perform all other operational functions for the
maintenance and administration of such Property;
(viii) deliver to or maintain on behalf of the Company copies
of all appraisals obtained in connection with the investments in
Properties; and
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(ix) on behalf of the Company and the Partnership, maintain,
with respect to any Property and to the extent available, title
insurance or other assurance of title and customary fire, casualty and
public liability insurance.
(c) provide the daily management of the Company and the Partnership and
perform and supervise the various administrative functions reasonably necessary
for the management of the Company and the Partnership, including but not limited
to:
(i) maintain and preserve the books and records of the
Company, including (A) a stock ledger reflecting a record of the
Stockholders and their ownership of the Company's Shares, (B) acting as
transfer agent for the Company's Shares or selecting, engaging and
overseeing the performance by a third party transfer agent, and (C)
maintaining the accounting and other record-keeping functions at the
Property and Company levels;
(ii) consult with the officers and Board and assist the Board
in the formulation and implementation of the Company's financial
policies, and, as necessary, furnish the Board 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
and the Partnership;
(iii) negotiate on behalf of the Company and the Partnership
with banks or lenders for loans to be made to the Company, and
negotiate on behalf of the Company and the Partnership with investment
banking firms and broker-dealers or negotiate private sales of Shares
and other securities or obtain loans for the Company and the
Partnership, 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 or the Partnership;
(iv) obtain reports (which may be prepared by the Advisor or
its Affiliates), where appropriate, concerning the value of investments
or contemplated investments of the Company;
(v) from time to time, or at any time reasonably requested by
the Board, provide information or make reports to the Board related to
its performance of services to the Company and the Partnership under
this Agreement;
(vi) from time to time, or at any time reasonably requested by
the Board, make reports to the Board of the investment opportunities it
has presented to other Advisor-sponsored programs or that it has
pursued directly or through an Affiliate;
(vii) provide the Company and the Partnership with all
necessary cash management services;
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(viii) at the direction of Company management, prepare the
Company's periodic reports and other filings made under the Securities
Exchange Act of 1934, as amended, and the Company's Post-Effective
Amendments to the Registration Statement as well as all related
prospectuses, prospectus supplements and supplemental sales literature
and assist in connection with the filing of such documents with the
appropriate regulatory authorities;
(ix) supervise the preparation and filing and distribution of
returns and reports to governmental agencies and to investors and act
on behalf of the Company in connection with investor relations;
(x) instruct any Custodian to execute transactions with
respect to securities held by the Company and instruct any brokers or
dealers executing orders on behalf of the Company to forward copies of
all confirmation to the Custodian promptly after execution of
transactions;
(xi) establish and maintain bank accounts on behalf of the
Company and the Partnership pursuant to Section 5 of this Agreement.
The services of the Advisor are to be of scope and quality not less than those
generally performed by professional asset managers of other similar property
portfolios. The Advisor shall make available the full benefit of the judgment,
experience and advice of the members of the Advisor's organization and staff
with respect to the duties it will perform under this Agreement. The Advisor may
engage one or more property managers, which may include Affiliates of the
Advisor, to manage, promote, and lease the Properties. The Advisor may engage
one or more sub-advisors to manage and advise portfolios of specific types of
real estate related securities held by the Company. The Advisor may also
investigate, select, and, on behalf of the Company and the Partnership, 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, valuation experts, technical
advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow
agents, depositaries, custodians, agents for collection, insurers, insurance
agents, banks, builders, developers, property owners, mortgagors, 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 and the
Partnership with any of the foregoing
4. MODIFICATION OR REVOCATION OF AUTHORITY OF ADVISOR. The Board may,
at any time upon the giving of notice to the Advisor, modify or revoke the
authority or approvals set forth in Section 3, provided however, that such
modification or revocation shall be effective upon receipt by the Advisor and
shall not be applicable to investment transactions to which the Advisor has
committed the Company and the Partnership prior to the date of receipt by the
Advisor of such notification. Any such notice may be communicated by the Company
orally subject to immediate written confirmation by the Advisor.
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5. BANK ACCOUNTS. The Advisor may establish and maintain one or more
bank accounts in its own name for the account of the Company and the Partnership
or in the name of the Company and the Partnership 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 and the Partnership, under such
terms and conditions as the Board may approve, provided that no funds shall be
commingled with the funds of the Advisor; and the Advisor shall from time to
time render appropriate accountings of such collections and payments to the
Board and to the auditors of the Company.
6. RECORDS; ACCESS. The Advisor shall maintain appropriate records of
all its activities hereunder and make such records available for inspection by
the Board and by counsel, auditors and authorized agents of the Company, at any
time or from time to time during normal business hours. The Advisor shall at all
reasonable times have access to the books and records of the Company and the
Partnership.
7. 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, or (c) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Company or the Partnership, its Shares or its other
securities, or otherwise not permitted by the Articles of Incorporation or
Bylaws of the Company, except if such action shall be ordered by the Board, in
which case the Advisor shall notify promptly the Board 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. In such
event the Advisor shall have no liability for acting in accordance with the
specific instructions of the Board so given. Notwithstanding the foregoing, the
Advisor, its directors, officers, employees and stockholders, and stockholders,
directors and officers of the Advisor's Affiliates shall not be liable to the
Company, the Partnership or to the Board or stockholders for any act or omission
by the Advisor, its directors, officers or employees, or stockholders, directors
or officers of the Advisor's Affiliates taken or omitted to be taken in the
performance of their duties under this Agreement except as provided in Sections
16 and 17 of this Agreement.
8. FEES.
(a) ADVISORY FEE. Subject to Section 8(b), commencing on the Effective
Date, the Advisor shall receive, in consideration for the services rendered in
connection with its services, an annual Advisory Fee equal to 1.1% of the NAV,
calculated on the last day of each calendar month. The Advisory Fee shall be
payable in arrears by the Company in cash by the Advisor (without interest) no
later than the 15th day of the next succeeding calendar month. Notwithstanding
anything in this Section 8(a), the Advisor shall not receive the Advisory Fee
unless and until the Company has sold $2,000,000 of Shares.
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(b) DEFERRAL AND RECOUPMENT OF ADVISORY FEE.
(i) During the period between the Effective Date and the last
day of the quarter during which the date that is five years from the
Effective Date occurs (the "DEFERRAL PERIOD"), Advisor agrees that, if
the Company's total Direct Fees and Expenses exceed 1.75% of the NAV
for any period, the Advisor will receive an Advisory Fee equal to (A)
1.1% of the NAV, minus (B) the amount by which the Company's total
Direct Fees and Expenses exceed 1.75% of the NAV for the period;
(ii) During the Deferral Period, if the Company's total Direct
Fees and Expenses are less than 1.75% of the NAV for any period, the
Advisor will receive an Advisory Fee equal to (A) 1.1% of the NAV, plus
(B) the difference between the Company's total Direct Fees and Expenses
and 1.75% of the NAV; provided, that in no event will the Advisor be
entitled to receive fees in excess of the Advisory Fee for the
applicable period plus the aggregate amount of all Advisory Fees
deferred pursuant to Section 8(b)(i) and not yet recouped pursuant to
this Section 8(b)(ii);
(iii) After the Deferral Period has ended, if the Company's
total Direct Fees and Expenses exceed 1.75% of the NAV for any period,
Advisor agrees (x) that it will receive an Advisory Fee equal to (A)
1.1% of the NAV, minus (B) the amount by which the Company's total
Direct Fees and Expenses exceed 1.75% of the NAV for the period, and
(y) that it shall not have the right to recoup any such fees pursuant
to Section 8(b)(ii); and
(iv) After the Deferral Period has ended, Advisor shall have
no right to recoup any previously deferred Advisory Fees pursuant to
Section 8(b)(ii), regardless of whether such Advisory Fees were
deferred during the Deferral Period.
(c) SPECIAL PARTNERSHIP UNITS. The Advisor has made capital
contributions to the Partnership in exchange for certain partnership units as
described as follows: $2,000 in exchange for 200 common units and $1,000 in
exchange for 100 Special Units. Upon the earliest to occur of the termination of
this Agreement by the Company, a Liquidation Event or a Listing, all of the
Special Partnership Units shall be redeemed by the Partnership in accordance
with the terms of the Partnership Agreement.
9. EXPENSES.
(a) REIMBURSABLE EXPENSES. In addition to the Advisory Fee paid to the
Advisor pursuant to Section 8 hereof, the Company or the Partnership shall pay
directly or reimburse the Advisor for all of the expenses paid or incurred by
the Advisor (to the extent not reimbursable by another party, such as the dealer
manager) in connection with the services it provides to the Company and the
Partnership pursuant to this Agreement, including, but not limited to:
(i) marketing and certain organization and offering expenses
incurred in connection with investor services;
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(ii) the actual cost of goods and services used by the Company and
obtained from entities not affiliated with the Advisor;
(iii) interest and other costs for borrowed money, including
discounts, points and other similar fees;
(iv) taxes and assessments on income of the Company or Properties;
(v) costs associated with insurance required in connection with
the business of the Company or by the Board;
(vi) fees and expenses of any Custodian;
(vii) all compensation and expenses payable to Directors in
connection with their services to the Company and the
Stockholders and their attendance at meetings of the Board and
Stockholders;
(viii) at the discretion of the board of directors of the Company,
expenses associated with a Listing;
(ix) expenses connected with payments of distributions in cash or
otherwise made or caused to be made by the Company to the
Stockholders;
(x) expenses of organizing, redomesticating, merging, liquidating
or dissolving the Company or of amending the Articles of
Incorporation or the Bylaws;
(xi) expenses of maintaining communications with Stockholders or
their financial advisors, including the cost of preparation,
printing, and mailing annual reports and other Stockholder
reports, proxy statements and other reports required by
governmental entities;
(xii) administrative service expenses (including (i) personnel costs
(including bonuses); provided, however, that no reimbursement
shall be made for costs of personnel to the extent that such
personnel perform services in transactions for which the
Advisor receives a separate fee, and (ii) the Company's
allocable share of other overhead of the Advisor such as rent
and utilities); and
(xiii) audit, accounting and legal fees.
(b) OTHER SERVICES. Should the Board request that the Advisor or any
Director, officer or employee thereof render services for the Company and the
Partnership other than set forth in Section 3, such services shall be separately
compensated at such rates and in such amounts as are agreed by the Advisor and
the Board, including a majority of the Independent 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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(c) TIMING OF AND LIMITATIONS ON REIMBURSEMENTS.
(i) Expenses incurred by the Advisor on behalf of the Company and
the Partnership and payable pursuant to this Section 9 shall
be reimbursed no less than monthly to the Advisor. The Advisor
shall prepare a statement documenting the expenses of the
Company and the Partnership during each month, and shall
deliver such statement to the Company and the Partnership
within 45 days after the end of each quarter.
(ii) Notwithstanding anything else in this Section 9 to the
contrary, the expenses enumerated in this Section 9 shall not
become reimbursable out of proceeds of any offering of Shares
to the Advisor unless and until the Company has raised the
minimum offering amount, if any, as provided in the prospectus
for such offering.
(iii) The Company shall not reimburse the Advisor at the end of any
fiscal quarter Direct Fees and Expenses or Asset Specific Fees
and Expenses that, in the four consecutive fiscal quarters
then ended (the "EXPENSE YEAR") exceed (the "EXCESS AMOUNT")
the 2%/25% Guidelines for such year unless a majority of the
Independent Directors determines that such excess was
justified, based on unusual and nonrecurring factors which a
majority of our Independent Directors deems sufficient. If a
majority of the Independent Directors does 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 a majority of the Independent Directors determines
such excess was justified, then within 60 days after the end
of any fiscal quarter of the Company for which total
reimbursed Direct Fees and Expenses and Asset Specific Fees
and Expenses for the Expense Year exceed the 2%/25%
Guidelines, the Advisor, at the direction of a majority of our
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.
(iv) The foregoing reimbursement of expenses, as limited by this
Agreement, will be made regardless of whether any cash
distributions are made to the Stockholders.
10. OTHER ACTIVITIES OF THE ADVISOR.
(a) GENERAL. Nothing herein contained shall prevent the Advisor from
engaging in other activities, including, without limitation, the acting as
investment adviser or performing investment management or other services 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
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stockholder of the Advisor or its Affiliates to engage in any other business or
to render services of any kind to any other partnership, corporation, firm,
individual, trust or association, and the performance of such services for
others Persons shall not be deemed to violate or give rise to any duty or
obligation to the Company or the Partnership. The Advisor may, with respect to
any investment in which the Company or the Partnership is a participant, also
render advice and service to each and every other participant therein. The
Advisor shall report to the Board 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 the Partners and its obligations to or its interest in any other
partnership, corporation, firm, individual, trust or association. The Advisor
does not have any obligation to devote time to managing or advising the
Company's assets. The Advisor is required to devote only such time and attention
to the affairs of the Company as it may deem appropriate in its sole discretion.
(b) POLICY WITH RESPECT TO ALLOCATION OF INVESTMENT OPPORTUNITIES.
Before the Advisor presents an investment opportunity that would in its judgment
be suitable for the Company or the Partnership to another Advisor-sponsored
program, the Advisor shall determine in its sole discretion that the investment
opportunity is more suitable for such other program than for the Company or the
Partnership based on factors such as the following: the investment objectives
and criteria of each program; the cash requirements and anticipated cash flow of
each program; the size of the investment opportunity; the effect of the
acquisition on diversification of each program's investments by type of property
and geographic area and, if applicable, tenant base; the policies of each
program relating to leverage; the estimated income tax effects of the purchase
on each entity; the funds of each entity available for investment and the length
of time such funds have been available for investment. In the event that an
investment opportunity becomes available that is, in the sole discretion of the
Advisor, equally suitable for the Company, the Partnership and another
Advisor-sponsored program, then the Advisor may offer the other program the
investment opportunity if it has had the longest period of time elapse since it
was offered an investment opportunity. The Advisor will use its reasonable
efforts to fairly allocate investment opportunities in accordance with such
allocation method and will promptly disclose any material deviation from such
policy or the establishment of a new policy, which shall be allowed provided (1)
the Board is provided with notice of such policy at least 60 days prior to such
policy becoming effective and (2) such policy provides for the reasonable
allocation of investment opportunities among such programs. The Advisor shall
provide the Independent Directors with any information reasonably requested so
that the Independent Directors can insure that the allocation of investment
opportunities is applied fairly. Nothing herein shall be deemed to prevent the
Advisor or an Affiliate from pursuing an investment opportunity directly rather
than offering it to the Company or another Advisor-sponsored program so long as
the Advisor is fulfilling its obligation to present a continuing and suitable
investment program to the Company which is consistent with the investment
policies and objectives of the Company and the Partnership.
11. RELATIONSHIP OF ADVISOR AND COMPANY. The Company, the Partnership
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.
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12. INTELLECTUAL PROPERTY.
(a) WORK PRODUCT. All right, title, and interest, including, without
limitation, all intellectual property rights, in or related to any services,
work product, and development work provided or performed by Advisor or Advisor's
subcontractors under or in connection with this Agreement, including, without
limitation, any works of authorship, inventions, processes, formulas,
proprietary information, databases, customer lists, marketing plans, business
strategies, financial information, forecasts, trademarks, services marks, brand
names, documents, data, designs, ideas, concepts, technical data, and any other
work product (collectively, "Work Product") shall vest in and be the sole and
exclusive property of Company. All copyrightable Work Product performed by or
for Advisor under this Agreement shall be considered works made for hire (as
that phrase is defined the United States Copyright Act, 17 U.S.C. Section 101,
and used in 17 U.S.C. Section 201) and, as such, shall be owned by Company. In
the event that any Work Product under this Agreement cannot be considered as a
work made for hire, Advisor hereby assigns, agrees to assign, and will cause its
employees and subcontractors to assign, to Company for no additional
consideration, all right, title, and interest that it may possess in such Work
Product. If and to the extent it is impossible as a matter of law to assign
ownership rights, including, without limitation, intellectual property rights in
any portion of the Work Product to Company, Advisor hereby grants to Company an
exclusive, irrevocable, perpetual, transferable, fully paid-up, worldwide and
unlimited right to use and exploit in any possible way (including, without
limitation, to modify, copy, amend, translate, further develop, prepare
derivative works of, distribute and sublicense) all intellectual property rights
pertaining to the Work Product, and any portion of it, and warrants with respect
to its employees and subcontractors, that they will do the same. Advisor
represents and warrants that Advisor has enforceable written agreements with all
of its employees and subcontractors involved in the provision of services and
work product under the Agreement to assign to Advisor ownership of work product,
and the intellectual property rights therein, created in the course of their
employment or engagement.
(b) FURTHER ACTIONS. At Company's request and without further
consideration, Advisor and Advisor's successors in interest shall execute any
and all powers of attorney, applications, assignments, declarations, affidavits,
and any other papers or documents necessary to perfect such right, title, and
interest in Company, its successors, assigns, and legal representatives. Advisor
shall not apply for the registration of rights in any of the Work Product under
any local, state or federal law of the United States or any other nation and
will not oppose or object in any way to applications for registration of same by
Company or Company's designee. Nothing in this Agreement shall be interpreted as
granting to Advisor any rights to the Work Product or any license to copy, adapt
or take any other action in respect of any Work Product, except on behalf of
Company as provided in this Agreement.
13. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated by the Company, with or without
Cause, or by the Advisor upon 30 days' written notice. Such termination shall be
without the payment of any penalty and without liability of either party to the
other, except that termination of this Agreement will not affect (i) the
validity of any action that either party has previously taken, (ii)
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the liabilities or obligations of either party for transactions started before
termination, or (iii) the Company's obligation to pay the Advisory Fee through
the date of such termination, and except that the payments to the holder of the
Special Partnership Units in accordance with the terms of the Partnership
Agreement shall not be deemed to be a penalty.
(b) The provisions of Section 12 and Sections 15 through 27 shall
survive termination of this Agreement.
14. ASSIGNMENT. No assignment (as that term is defined in the Advisers
Act) shall be made by the Advisor with out the prior written consent of the
Company.
15. PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION. Payments to the
Advisor pursuant to this Section 15 shall be subject to the 2%/25% Guidelines to
the extent applicable.
(a) After termination of this Agreement, the Advisor shall not be
entitled to compensation for further services hereunder except it shall be
entitled to receive from the Company within 30 days after the effective date of
such termination all unpaid reimbursements of expenses and all earned but unpaid
Advisory Fees; and
(b) 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 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;
(iii) deliver to the Board all assets, including Properties, and
documents of the Company then in the custody of the Advisor;
and
(iv) cooperate with the Company to provide an orderly management
transition.
16. INDEMNIFICATION BY THE COMPANY. 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 or the Articles of Incorporation. Notwithstanding the foregoing, the
Advisor shall not be entitled to indemnification or be held harmless pursuant to
this Section 16 for any activity which the Advisor shall be required to
indemnify or hold harmless the Company pursuant to Section 17. Any
indemnification of the Advisor may be made only out of the net assets of the
Company and not from Stockholders.
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17. 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, willful misfeasance, misconduct, or reckless disregard of its duties, but
the Advisor shall not be held responsible for any action of the Board in
following or declining to follow advice or recommendation given by the Advisor.
18. 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 Board and to the Company:
Xxxxx Total Return REIT, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board
To the Partnership:
Xxxxx Total Return Operating Partnership, L.P
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board of Xxxxx Total Return
REIT, Inc., General Partner
To the Advisor:
Xxxxx Asset Management, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: President
Either party may at any time give notice in writing to the other party
of a change in its address for the purposes of this Section 18.
19. MODIFICATION. This Agreement shall not be changed, modified,
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
20. SEVERABILITY. The provisions of this Agreement are independent of
and severable from each other, and no provision shall be affected or rendered
invalid or
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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.
21. CONSTRUCTION. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of Georgia.
22. 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.
23. INDULGENCES, NOT 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.
24. GENDER. 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.
25. TITLES NOT TO AFFECT INTERPRETATION. The titles 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.
26. 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, taken together, bear the signatures of all
of the parties reflected hereon as the signatories.
27. FIDELITY BOND. The Advisor shall not be required to obtain or
maintain a fidelity bond in connection with the performance of its services
hereunder.
28. NAME. Xxxxx Real Estate Funds, Inc. has a proprietary interest in
the name "Xxxxx." Accordingly, and in recognition of this right, if at any time
the Company or the Partnership ceases to retain Xxxxx Asset Management, Inc. or
an Affiliate thereof to perform the services of Advisor, the Company or the
Partnership, as the case may be, will, promptly after receipt of written request
from Xxxxx Real Estate Funds, Inc. cease to conduct business under or use the
name "Xxxxx" or any derivative thereof and the Company or the Partnership shall
use its
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best efforts to change the name of the Company to a name that does not contain
the name "Xxxxx" or any other word or words that might, in the sole discretion
of the Advisor, be susceptible of indication of some form of relationship
between the Company and the Advisor or any Affiliate thereof. Consistent with
the foregoing, it is specifically recognized that the Advisor or one or more of
its Affiliates has in the past and may in the future organize, sponsor or
otherwise permit to exist other investment vehicles (including vehicles for
investment in real estate) and financial and service organizations having
"Xxxxx" as a part of their name, all without the need for any consent (and
without the right to object thereto) by the Company or its Board.
[Signatures appear on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the date first above written.
XXXXX TOTAL RETURN REIT, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
XXXXX TOTAL RETURN
OPERATING PARTNERSHIP, L.P.
By: Xxxxx Total Return REIT, Inc.,
General Partner
By:
----------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
XXXXX ASSET MANAGEMENT, INC.
By:
----------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
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