EXHIBIT 10.3 FINANCIAL ADVISORY AGREEMENT
FINANCIAL ADVISORY AGREEMENT
AGREEMENT made as of June 1, 1998 by and between Cedar Income Fund,
Ltd. (the "Company"), a real estate investment trust organized under the laws of
the State of Iowa, with offices at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx
Xxxx and B.V. Capital Markets Inc. ("B.V.C."), a New York corporation, an
affiliate of Bayerische Vereinsbank AG, a German banking institution, with
offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
WHEREAS the Company wishes to avail itself of the experience, sources
of information, advice, and assistance of B.V.C. and to have B.V.C. perform
certain services on behalf of, and subject to the supervision of, the board of
directors of the Company (the "Board"), as provided herein;
WHEREAS B.V.C. is willing to undertake to render such services,
subject to the approval of the Board, on the terms and conditions hereinafter
set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed as follows:
1. SERVICES OF FINANCIAL ADVISOR. Subject to acceptance of this
Agreement by the Company, B.V.C., under the direction and supervision of, and
subject to the approval of, the Board, shall serve as the Company's financial
advisor and consultant in connection with financial policy decisions to be made
by the Company. In this regard, B.V.C. shall:
- advise on acquisition financing and/or a line of credit for future
acquisitions by the Company;
- advise on contributions, sales, assignments or other transfers to or for
the benefit of the Company by U.S. and foreign clients or contacts of
B.V.C. of U.S. real property interests appropriate to or consistent with
the desired investment parameters of the Company in exchange for cash,
shares of the Company interests in an Upreit partnership of which the
Company is general partner and/or other consideration;
- advise on a private placement of Company shares;
- assist the Board in developing suitable investment parameters for the
Company;
- develop and maintain contacts on behalf of the Company with U.S. and
foreign commercial and investment banking firms, non-bank financial
institutions, and others with substantial interests in real estate and
capital securities markets, other REITS, and national and regional
associations of such persons and entities;
- advise the Board as to issues relevant to additional private placements or
public issues of shares and various alternate debt financing opportunities;
- review certain financial policy matters with consultants, accountants,
lenders, attorneys, and persons acting in any other capacity deemed by the
Board to be necessary or desirable; and
- prepare periodic (generally quarterly) reports of its performance of the
foregoing services to the Company.
Notwithstanding any other provision in this agreement to the contrary, B.V.C.
shall not furnish or render services to tenants of the Company's properties, or
manage or operate property of the Company, or do any other act which would
adversely affect the status of the Company as a real estate investment trust as
defined and limited in Section 856 et. seq. of the Internal Revenue Code of
1986, as amended, or Regulations promulgated thereunder. The Board does not have
any obligation to accept or approve any proposal made by B.V.C.
It is specifically contemplated that Xxxxxx Palm would continue to serve as a
consultant or employee to B.V.C. in performing its services hereunder and that
Mr. Palm would be compensated by B.V.C. for his services in helping B.V.C.
discharge its duties hereunder.
2. FURNISHING INFORMATION TO ADVISOR. Subject to the acceptance of
this Agreement by the Company, the Company shall at all times keep B.V.C. fully
informed with regard to the investments which it owns, its funds available or to
become available for investment, and generally as to the condition of its
affairs. In particular, the Company shall notify B.V.C. promptly of any proposal
or offer for sale or other disposition of any of the Company's investments, or
for any new investment. B.V.C. shall enter into such confidentiality and
non-competition agreements with respect to such disclosed information as counsel
for the Company may reasonably require. 3. RECOMMENDATION BY ADVISOR. Subject to
acceptance of this Agreement by the Company, B.V.C. shall consult with the Board
and the officers of the Company and furnish them with advice and recommendations
with respect to the acquisition, by purchase, exchange, or otherwise, the
holding and the disposal, through sale, exchange, or otherwise, of investments
of, or investments considered by, the Company. B.V.C. shall at the request of
the Board or the officers of the Company furnish advice and recommendations with
respect to other aspects of the business and affairs of the Company. In the
absence of a director designated by B.V.C., and unless otherwise notified by the
Board, a duly authorized representative of B.V.C., may attend all regular and
special meetings of the Board. The Company shall notify B.V.C. of all such
meetings.
4. BOOKS. B.V.C. shall maintain appropriate records of all its
activities hereunder.
5. POSITION OF DIRECTORS AND RELATIONSHIP WITH THE COMPANY. Officers
and employees of B.V.C. may serve as Directors and as officers of the Company.
Subject to approval by the Bayerische Vereinsbank AG of his election as Director
of the Company, Cedar Bay Company will cause its shares to be voted in favor of
Xxxx-Xxxxxxx Xxxx as director of the Company.
6. COMPENSATION. (a) For services rendered by it, B.V.C. shall be
entitled to the following compensation commencing as of the date hereof, as
determined by, and subject to the approval of the Board:
(i) 0.25% (25 basis points) of the Fund's net asset value ("Net
Asset Value") as defined in the Agreement of Limited Partnership of Cedar Income
Fund Partnership, L.P. (the "Upreit") less any indebtedness of the Company,
affecting the net value of the Company's assets, the Upreit or the properties,
but in any event no less than $100,000 per annum, payable in equal quarterly
installments on the last business day of each calendar quarter;
(ii) A one-time payment of 1.5% (150 basis points) of the "Agreed
Value", as defined in the Agreement of Limited Partnership of Cedar Income
Partnership, L.P. of properties contributed to the Company or its affiliates,
including the "Upreit" partnership(s) by entities or persons introduced by
B.V.C. to the Company. The fee shall be payable only after the property has been
contributed to the Company;
(iii) As soon as the Company becomes self administered, B.V.C.
shall have the option, in its sole discretion to convert its claim to received
its financial advisory fees payable under (ii) above into an ownership interest
in the company or cash, equal to 5x those fees.
(b) B.V.C. shall promptly furnish to the Company a statement for any
fees payable hereunder for each quarter annual period during which B.V.C.
performed services hereunder. Such statement shall include the calculation by
which such fee was determined.
(c) In the absence of a bona fide dispute between the parties as to
such payment, the Company shall pay to B.V.C. the amount payable pursuant to any
such statement not later than the 20th day of the month following the quarter
during which the services for the payment of which the fee is payable were
rendered.
(d) If the Company shall request B.V.C., or any director, officer, or
employee thereof, to render services for the Company other than those to be
rendered by B.V.C. hereunder, such additional services shall be compensated
separately on terms to be agreed upon between B.V.C. and the Company from time
to time.
7. RESPONSIBILITY OF ADVISOR. B.V.C. assumes no responsibility
hereunder other than to render the services required hereunder in good faith and
shall not be responsible for any action of the Board or officers of the Company
in following or declining to follow any advice or recommendations of B.V.C..
B.V.C., its officers, and employees shall not be liable to the Company, the
Company's shareholders, or others except for acts constituting bad faith,
willful misfeasance, gross negligence, or reckless disregard of its or his
duties. The Company and B.V.C. are not partners or joint venturers, and nothing
herein shall be construed so as to make them partners or joint venturers or
impose any liability as such on either of them. B.V.C. agrees to devote
appropriate time and personnel to performing its obligations under this
Agreement.
8. FREEDOM OF OFFICERS OF ADVISOR. Nothing herein shall limit or
restrict the right of any director, officer, or employee of B.V.C. who may also
be a Director, officer, or employee of the Company to engage in any other
business or to render services of any kind to any other corporation, firm,
individual, or association, except that such person shall not engage in any
activity which shall be competitive with, or otherwise in the reasonable
judgment of the Board, be adverse to the interests of the Company.
9. TERM OF CONTRACT. This contract shall be in force for a period of
12 months commencing on the effective date hereof. It shall continue thereafter
from year to year unless cancelled by either party at the end of any year, upon
60 days' prior written notice. The Company may cancel this agreement only by
affirmative vote of a majority of the independent Directors then in office at a
meeting called for such purpose. For purposes of the preceding sentence
"independent Trustee" means a Director who is not a director, officer, affiliate
or shareholder of B.V.C.
10. NONASSIGNABILITY. This contract shall terminate automatically if
B.V.C. shall assign it without the written consent of the Company. The Company
shall not assign this contract without B.V.C.'s consent. No consent shall be
necessary, however, where the assignment is to a corporation or other
organization that is a successor to the Company, in which case the other
corporation shall be bound hereunder and by the terms of such assignment in the
same manner as is the Company.
11. TERMINATION. This agreement shall terminate immediately upon
written notice of termination from the Company to B.V.C. if any of the following
events shall happen:
(a) If B.V.C. shall violate any provision of the contract, and after
notice of such violation, shall not cure such default within 30 days; or
(b) If, B.V.C. shall be adjudged bankrupt or insolvent by a court of
competent jurisdiction, or an order shall be made by a court of competent
jurisdiction for the appointment of a receiver, liquidator, or trustee of the
Corporation, or of all or substantially all of its property by reason of the
foregoing, or approving any petition filed against B.V.C. for its
reorganization, and such adjudication or order shall remain in force or unstayed
for period of 30 days; or
(c) If B.V.C. 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 B.V.C. or of all or substantially all of 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.
If any event specified in subparagraphs (b) and (c) of this paragraph
11 shall occur, B.V.C. shall give written notice thereof to the Company within
seven days thereof.
Should Agreement be terminated at the end of year 1, B.V.C. will
receive from company a cancelation fee equal to 50% of the advisory fee to which
it would have been entitled for the first 32 months but no less than $50,000 if
Agreement is terminated by Company and not more than $50,000 if Agreement is
terminated by B.V.C.
12. NOTICES. Any notice, report, or other communication required or
permitted to be given hereunder shall be in writing and shall, unless some other
method of giving such notice, report, or other communication is accepted by the
party to whom it is given, be mailed by certified mail to the following
addresses parties thereto:
Cedar Bay:
Cedar Bay Company
c/o SKR Management Corp.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn.: Xxx X. Xxxxxx
The Company:
Cedar Income Fund, Ltd.
c/o SKR Management Corp.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxx
B.V.C.:
B.V. Capital Markets Inc.
000 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xx. Xxxx-Xxxxxxx Xxxx
with a copy to Xx. Xxxxxx Palm
c/o B.V. Capital Markets Inc.
000 Xxxx 00 Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Any party may at any time give notice to the other party that it wishes to
change its address for the purpose of this paragraph.
14. MODIFICATION. This agreement shall not be changed, modified,
terminated, or discharged in whole or in part, except by an instrument signed by
both parties hereto, or their respective successors or assigns.
15. BINDING EFFECT. This agreement shall bind all of the parties'
successors and all of the Company's assigns.
16. APPLICABLE LAW. The provisions of this agreement shall be
construed and interpreted in accordance with the law of the State of New York.
17. EFFECT ON COMPANY. No director, officer, agent, or shareholder of
the Company shall be bound or held to any personal liability in connection with
the Company's obligations hereunder.
18. HEADINGS FOR REFERENCE ONLY. Headings preceding the text and
sections of this agreement have been inserted solely for convenience and
reference, and shall not be construed to affect its meaning, construction, or
effect.
19. ENTIRE AGREEMENT. This agreement supersedes all agreements
previously made between the parties relating to its subject matter. There are no
other understandings or agreements between them.
20. NON-WAIVER. No delay or failure by either party to exercise any
right under this agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
21. COUNTERPARTS. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
22. EFFECTIVE DATE. This Agreement shall only become effective after
formal approval by the Board of the Company.
IN WITNESS WHEREOF the parties hereto have caused this contract to be executed
by their officers thereunto duly authorized as of the day and year first above
written.
B.V. Capital Markets Inc.
By:_______________________
By: _______________________
Attest: BV Capital Markets Inc.
___________________________ By: _______________________
Secretary President
Cedar Income Fund, Ltd.
By: _______________________
Section 5 is agreed to
Cedar Bay Company
By:________________________
