EXHIBIT 10.1
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this "Agreement") is made as of ________, 2004
(the "Effective Date"), by and between (i) Desert Capital Reit, Inc., a
Maryland corporation (the "Company"), and (ii) Xxxxxx Management Company, Ltd.,
a Nevada corporation (the "Advisor").
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. The Company intends to use the net proceeds of borrowings and
security offerings and the net returns on its investments which are not
otherwise distributed to stockholders in Mortgage Assets (defined herein) in a
manner which allows the Company to qualify as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code") and to qualify
for an exemption from being an "investment company" under the Investment Company
Act of 1940, as amended (the "Investment Company Act").
B. The Company desires that the Advisor undertake, on the Company's
behalf, the duties and responsibilities set forth in this Agreement, subject to
the direction and oversight of the Board of Directors of the Company (the "Board
of Directors"), on the terms and conditions set forth in this Agreement.
C. The Advisor desires to undertake, on the Company's behalf, the
duties and responsibilities set forth in this Agreement, subject to the
direction and oversight of the Board of Directors, on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereto, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement shall have the
respective meanings assigned to them below:
1.1 "Advisor" has the meaning set forth in the Introductory Paragraph
of this Agreement, and shall include any successor thereto.
1.2 "Advisor Obligations" has the meaning set forth in Section 2.4.2 of
this Agreement.
1.3 "Advisor Refund" has the meaning set forth in Section 6.2.1(2) of
this Agreement.
1.4 "Affiliate" means, when used with reference to a specified person,
any person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the specified
person. For purposes of this definition, the term "person" means and includes
individuals, corporations, general and limited partnerships, stock companies,
land trusts, business trusts and other entities and governments and agencies and
political
subdivisions thereof. For purposes of this definition, "control" (including the
correlative meanings of the terms "controlled by" and "under common control
with"), as used with respect to any person, shall mean the possession, directly,
or indirectly through one or more intermediaries, of the power to direct or
cause the direction of the management and policies of such person, whether by
contract, through the ownership of voting securities, partnership interests or
other equity interests or otherwise.
1.5 "Annual Incentive Amount" shall have the meaning set forth in
Section 6.2.1(2) of this Agreement.
1.6 "Agreement" means this Advisory Agreement dated as of the Effective
Date, by and between the Company and the Advisor, as it is amended from time to
time in accordance with the terms of this Agreement.
1.7 "Average Invested Assets" means for any period the average of the
aggregate book value of our assets invested, directly or indirectly, in equity
interests in and loans secured by real estate, before reserves for depreciation
or bad debts or other similar non-cash reserves, computed by taking the average
of such values at the end of each month during any given period.
1.8 "Average Net Worth" means for any period the average of the net
worth of the Company at the end of each week during the period. For purposes of
determining the Average Net Worth, the "net worth" means the difference between
(i) the aggregate book value of the consolidated assets of the Company and its
subsidiaries, before reserves for depreciation, bad debts or other similar
non-cash items, and (ii) the aggregate book value of debt of the Company and its
subsidiaries.
1.9 "Base Management Compensation" has the meaning set forth in Section
6.1 of this Agreement.
1.10 "Board of Directors" has the meaning set forth in Recital B of
this Agreement.
1.11 "Cause" means a reasonable good faith determination of the Board
of Directors based on findings of fact which are disclosed to the Advisor that
the Advisor was grossly negligent, acted with reckless disregard or engaged in
willful misconduct or active fraud while discharging its material duties under
this Agreement.
1.12 "Change of Control" means in any transaction or series of
transactions (i) any sale, lease, assignment, transfer or other conveyance of
all or substantially all of the Company's assets, or (ii) any consolidation or
merger involving the Company in which all of the stockholders of the Company
immediately prior to the consummation of such transaction, considered
collectively, do not immediately following the transaction own shares of the
surviving entity constituting at least a majority of the voting power of the
surviving entity, (iii) any reclassification or other exchange of capital stock,
or any other recapitalization of the Company in which any person or group, as
those terms are used in Rule 13d-1 promulgated under the Securities Exchange Act
of 1934, as amended, that owned 30% of the voting power of
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the Company immediately prior to the consummation of such transaction do not
immediately following the transaction own at least 30% of the voting power of
the Company or in which any person or group that owned less than 30% of the
voting power of the Company immediately prior to the consummation of the
transaction do not immediately following the transaction own more than 30% of
the voting power of the Company, (iv) any liquidation, dissolution or winding up
of the Company, or (v) any time fewer than two members of the Board of Directors
are individuals which were selected by the Advisor. In instances where a natural
person selected by the Advisor and immediately thereafter appointed to the Board
of Directors either resigns or dies, then a Change of Control under clause (v)
of the preceding sentence shall not be triggered if (i) the Board of Directors
does not elect to terminate the Advisor within 30 days after the first director
resigns or dies, or (ii) the qualified individual next selected by the Advisor
is appointed as soon as possible after such selection and the Board of Directors
does not take any action from the time the Advisor selects the next individual
until the time the next Advisor-selected director is appointed.
1.13 "Code" has the meaning set forth in Recital A of this Agreement.
1.14 "Company" has the meaning set forth in the Introductory Paragraph
of this Agreement, and shall include any successor thereto.
1.15 "Effective Date" has the meaning set forth in the Introductory
Paragraph of this Agreement.
1.16 "Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
1.17 "GAAP" means generally accepted accounting principles, as applied
in the United States.
1.18 "Governing Instruments" means the articles of incorporation or
charter, as the case may be, and the bylaws of the Company and its subsidiaries,
as those documents may be amended from time to time.
1.19 "Incentive Management Compensation" has the meaning set forth in
Section 6.2 of this Agreement.
1.20 "Independent Directors" are those who are not associated and have
not been associated within the last two years, directly or indirectly, with the
Company or the Advisor.
1.21 "Investment Company Act" has the meaning set forth in Recital A of
this Agreement.
1.22 "Last Auditor" has the meaning set forth in Section 6.3 of this
Agreement.
1.23 "Mortgage Assets" means the following:
(i) mortgage securities (or interests therein), including (a)
pass-through certificates (including GNMA certificates, FNMA
certificates and FHLMC certificates),
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(b) collateralized mortgage obligations, (c) securities
representing interests in, or secured by, mortgages on real
property other than pass-through certificates and CMOs, (d)
certificates and other securities collateralized by loans,
mortgage derivative securities, subordinated interests and
other mortgage-backed and mortgage-collateralized obligations,
(e) mortgage derivative securities and (f) subordinated
interests;
(ii) mortgage loans, including (a) conforming mortgage loans (i.e.,
mortgage loans which comply with requirements for inclusion in
credit support programs sponsored by FHLMC, FNMA or GNMA or
are FHA or VA Loans, all of which are secured by first
mortgages or deeds of trust on single-family (one to four
units) residences, multifamily residences or commercial
properties) and (b) non-conforming mortgage loans; and
(iii) short-term investments, including short-term bank certificates
of deposit, short-term U.S. Treasury securities, short-term
U.S. government agency securities, commercial paper,
repurchase agreements, short-term CMOs, short-term
asset-backed securities and other similar types of short-term
investment instruments, all of which will have maturities or
average lives of less than one year.
1.24 "Net Income" means for any period the taxable income of the
Company and its subsidiaries (including net capital gains, if any, but excluding
net capital losses, if any) before deducting (i) the Incentive Management
Compensation, (ii) any net operating loss deductions arising from losses in
prior periods and (iii) any items which the Code permits to be deducted when
calculating taxable income for a REIT.
1.25 "Quarterly Incentive Amount" has the meaning set forth in Section
6.2.1(1) of this Agreement.
1.26 "Reconciliation Notice" has the meaning set forth in Section 6.3
of this Agreement.
1.27 "REIT" means a "real estate investment trust" as defined under the
Code.
1.28 "REIT Provisions of the Code" means Sections 856 through 860 of
the Code.
1.29 "Remaining Amount" has the meaning set forth in Section 6.2.1(2)
of this Agreement.
1.30 "Short-Term Investments" means short-term bank certificates of
deposit, short-term U.S. Treasury securities, short-term U.S. government agency
securities, commercial paper, repurchase agreements, short-term CMOs, short-term
asset-backed securities and other similar types of short-term investment
instruments, all of which will have maturities or average lives of less than one
year.
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1.31 "Sub-Advisor" means any third party (other than the Advisor) which
has been selected by the Advisor and approved by the Board of Directors to
manage all or a portion of the day-to-day operations of the Company and perform
the services and other activities described in Section 2.1 of this Agreement.
Any approval of a Sub-Advisor by the Board of Directors may be conditioned or
limited in any manner determined by the Board of Directors, including, without
limitation, the terms and conditions of any such agreement with a Sub-Advisor.
1.32 "Ten-Year U.S. Treasury Rate" means for any period the average of
the weekly average yields to maturity for actively traded current coupon U.S.
Treasury fixed interest rate securities (adjusted to a constant maturity of ten
years) published by the Federal Reserve Board for each week during such period,
or, if such rate is not published by the Federal Reserve Board, any Federal
Reserve Bank or agency or department of the federal government selected by the
Company. If the Company determines in good faith that the Ten-Year U.S. Treasury
Rate cannot be calculated as provided above, then the rate shall be the
arithmetic average of the per annum average yields to maturities, based upon
closing asked prices on each business day during such period, for each actively
traded marketable U.S. Treasury fixed interest rate security with a final
maturity date not less than eight nor more than 12 years from the date of the
closing asked prices as chosen and quoted for each business day in each such
period in New York City by at least three recognized dealers in U.S. government
securities selected by the Company.
1.33 "Threshold Return" has the meaning set forth in Section 6.2.3 of
this Agreement.
1.34 "Tiered Percentage" has the meaning set forth in Section 6.2.2 of
this Agreement.
1.35 "Total Operating Expenses" means the aggregate expenses of every
character paid or incurred by the Company as determined under GAAP, including
the Advisor's fees, but excluding (i) the expenses or raising capital such as
organization and offering expenses, legal audit, accounting underwriting,
brokerage, listing registration and other fees, printing and other such
expenses, and tax incurred in connection with the issuance, distribution,
transfer, registration, and stock exchange listing of the Company's shares; (ii)
interest payments; (iii) taxes; (iv) non-cash expenditures such as depreciation,
amortization and bad debt reserves; (v) incentive fees paid to the Advisor in
connection with the gain from the sale of the Company's assets; and (vi)
acquisition fees, acquisition expenses, 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, maintenance,
repair and improvement of property).
1.36 "Unaffiliated Director" means a natural person serving as a
director of the Company who is not affiliated, directly or indirectly, with the
Advisor or any of its Affiliates in any material respect, whether by ownership
of, ownership interest in, employment by, any material business or professional
relationship with, or serving as an officer or director of the Advisor or any of
its Affiliates.
2. General Duties of the Advisor.
2.1 Services. Subject at all times to the direction and oversight of
the Board of Directors, the Advisor shall (i) generally manage the day-to-day
operations of the Company and
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perform the services and other activities described below, and (ii) to the
extent directed by the Board of Directors, perform similar management and
services for any subsidiary of the Company. The Advisor, in its sole discretion
with the approval of the Board of Directors, may elect to cause the duties of
the Advisor under this Agreement to be provided by a Sub-Advisor. The Advisor
shall perform the following services from time to time as may be required for
the management of the Company and its assets:
2.1.1 serving as the Company's consultant with respect to the
formulation of investment criteria and the preparation of policy
guidelines by the Board of Directors;
2.1.2 assisting the Company in developing criteria for
Mortgage Asset purchase commitments that are consistent with the
Company's long-term investment objectives and making available to the
Company its knowledge and experience with respect to Mortgage Assets;
2.1.3 representing the Company in connection with the
purchase, sale and commitment to purchase or sell Mortgage Assets that
meet in all material respects the Company's investment criteria;
2.1.4 managing the Company's portfolio of Mortgage Assets;
2.1.5 advising the Company and negotiating the Company's
agreements with third-party lenders for borrowings by the Company;
2.1.6 making available to the Company statistical and economic
research and analysis regarding the Company's activities and the
services performed for the Company by the Advisor;
2.1.7 monitoring and providing to the Board of Directors from
time to time price information and other data obtained from certain
nationally-recognized dealers that maintain markets in Mortgage Assets
identified by the Board of Directors from time to time, and providing
data and advice to the Board of Directors in connection with the
identification of such dealers;
2.1.8 investing or reinvesting any money of the Company in
accordance with the Company's policies and procedures;
2.1.9 providing the executive and administrative personnel,
office space and services required in rendering services to the
Company, in accordance with and subject to the terms of this Agreement;
2.1.10 administering the day-to-day operations of the Company
and performing and supervising the performance of such other
administrative functions necessary to the management of the Company as
may be agreed upon by the Advisor and the Board of Directors, including
the collection of revenues and the payment of the Company's debts and
obligations from the Company's accounts, and the maintenance of
appropriate computer systems to perform such administrative functions;
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2.1.11 advising the Board of Directors in connection with policy
decisions;
2.1.12 evaluating and recommending hedging strategies to the Board of
Directors and, upon approval by the Board of Directors, engaging in hedging
activities on behalf of the Company consistent with the Company's status as a
REIT;
2.1.13 supervising compliance by the Company with the REIT Provisions
of the Code and maintenance of its status as a REIT;
2.1.14 qualifying and causing the Company to qualify to do business in
all applicable jurisdictions and obtaining and maintaining all appropriate
licenses;
2.1.15 assisting the Company in any executive search for executive
officers.
2.1.16 assisting the Company to retain qualified accountants and tax
experts to assist in developing and monitoring appropriate accounting procedures
and testing systems and to conduct quarterly compliance reviews as the Board of
Directors may deem necessary or advisable;
2.1.17 assisting the Company in its compliance with all federal
(including the Xxxxxxxx-Xxxxx Act of 2002), state and local regulatory
requirements applicable to the Company in respect of its business activities,
including preparing or causing to be prepared all financial statements required
under applicable regulations and contractual undertakings and all reports,
documents and filings, if any, required under the Securities Exchange Act of
1934, as amended, or other federal or state laws;
2.1.18 assisting the Company in its compliance with federal, state and
local tax filings and reports and generally enabling the Company to maintain its
status as a REIT, including soliciting stockholders, as defined below, for
required information to the extent provided in the REIT Provisions of the Code;
2.1.19 assisting the Company in its maintenance of an exemption from
the Investment Company Act and monitoring compliance with the requirements for
maintaining an exemption from the Investment Company Act;
2.1.20 coordinating and managing the operations of any joint venture or
co-investment interests held by the Company and conducting all matters with the
joint venture or co-investment collaborators;
2.1.21 advising the Company as to its capital structure and capital
raising activities;
2.1.22 handling and resolving all claims, disputes or controversies
(including all litigation, arbitration, settlement or other proceedings or
negotiations) in which the Company may be involved or to which the Company may
be subject arising out of the Company's day-to-day operations, subject to the
approval of the Board of Directors;
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2.1.23 engaging and supervising, on behalf of the Company and at the
Company's expense, the following, without limitation: independent contractors to
provide investment banking services, leasing services, mortgage brokerage
services, securities brokerage services, other financial services and such other
services as may be deemed by the Advisor and the Board of Directors to be
necessary or advisable from time to time; and
2.1.24 so long as the Advisor does not incur additional costs or
expenses, performing such other services as may be required from time to time
for management and other activities relating to the assets of the Company as the
Board of Directors shall reasonably request or the Advisor shall deem
appropriate under the particular circumstances.
2.2 Obligations of the Advisor.
2.2.1 Verify Conformity with Investment Criteria. Subject to the
direction of the Board of Directors, the Advisor shall use commercially
reasonable efforts to provide that each Mortgage Asset acquired by the Company
conforms in all material respects to the investment criteria of the Company and
shall seek to cause each seller or transferor of Mortgage Assets to the Company
to make such representations and warranties regarding such Mortgage Assets as
may, in the reasonable judgment of the Advisor, be necessary and appropriate,
subject to market custom. In addition, the Advisor shall take such other action
as it deems reasonably necessary or appropriate in seeking to protect the
Company's investments to the extent consistent with its duties under this
Agreement.
2.2.2 Conduct Activities in Conformity with REIT Status and All
Applicable Restrictions. Subject to the direction of the Board of Directors, the
Advisor shall refrain from any action which, in its sole judgment made in good
faith, would adversely affect the status of the Company or, if applicable, any
subsidiary of the Company as a REIT or (i) which, in its sole judgment made in
good faith, would violate any material law, rule or regulation of any
governmental body or agency having jurisdiction over the Company or any such
subsidiary or (ii) which would otherwise not be permitted by the Company's or
such subsidiary's Governing Instruments, any material operating policies adopted
by the Company, or any agreements actually known by the Advisor, except in each
of clauses (i) and (ii) as could not reasonably be expected to have a material
adverse effect on the Company. If the Advisor is directed to take any such
action by the Board of Directors, the Advisor shall promptly notify the Board of
Directors of the Advisor's judgment that such action would adversely affect such
status or cause such violation or not be permitted as aforesaid.
2.2.3 Reports. Upon the request of the Board of Directors and at the
sole cost and expense of the Company, the Advisor shall cause an annual
compliance report of the Company to be prepared by a firm independent of the
Advisor and its Affiliates and having the proper expertise to determine
compliance with the REIT Provisions of the Code and related matters. In
addition, the Advisor shall prepare regular reports for the Board of Directors
that will review the Company's investments in Mortgage Assets, portfolio
composition and characteristics, credit quality (if applicable), performance
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and compliance with the Company's investment policies and policies that
enable the Company to maintain its qualification as a REIT and to
maintain its exemption from being deemed an "investment company" under
the Investment Company Act.
2.2.4 Portfolio Transactions. In placing portfolio
transactions and selecting brokers or dealers, the Advisor shall seek
to obtain on behalf of the Company commercially reasonable terms. In
assessing commercially reasonable terms for any transaction, the
Advisor shall consider all factors it deems relevant, including the
breadth of the market for the security, the price of the security, the
financial condition and execution capability of the broker or dealer,
and the reasonableness of the commission, if any, both for the specific
transaction and on a continuing basis.
2.3 Cooperation of the Company. The Company (including the Board of
Directors) agrees to take all actions reasonably required to permit and enable
the Advisor to carry out its duties and obligations under this Agreement,
including, without limitation, all steps reasonably necessary to allow the
Advisor to file any registration statement on behalf of the Company in a timely
manner. The Company further agrees to use commercially reasonable efforts to
make available to the Advisor all resources, information and materials
reasonably requested by the Advisor to enable the Advisor to satisfy its
obligations hereunder, including its obligations to deliver financial statements
and any other information or reports with respect to the Company. If the Advisor
is not able to provide a service, or in the reasonable judgment of the Advisor
it is not prudent to provide a service, without the approval of the Board of
Directors or the Unaffiliated Directors, as applicable, then the Advisor shall
be excused from providing such service (and shall not be in breach of this
Agreement) until the applicable approval has been obtained.
2.4 Engagement of Third Parties.
2.4.1 Securities Dealers. The Advisor is authorized, for and
on behalf, and at the sole cost and expense of the Company, to employ
such securities dealers (including Affiliates of the Advisor) for the
purchase and sale of Mortgage Assets as may, in the judgment of the
Advisor, be necessary to obtain the best commercially available net
results taking into account such factors as the policies of the
Company, price, dealer spread, the size, type and difficulty of the
transaction involved, the firm's general execution and operational
facilities and the firm's risk in positioning the securities involved.
Consistent with this policy, the Advisor is authorized to direct the
execution of the Company's portfolio transactions to dealers and
brokers furnishing statistical information or research deemed by the
Advisor to be useful or valuable to the performance of its investment
advisory functions for the Company.
2.4.2 Other Third Parties. The Advisor is authorized to
retain, for and on behalf of the Company, the services of third parties
(including Affiliates of the Advisor), including, without limitation,
accountants, legal counsel, appraisers, insurers, brokers, dealers,
transfer agents, registrars, developers, investment banks, financial
advisors, banks and other lenders and others as the Advisor deems
reasonably necessary or advisable in connection with the management and
operations of the Company. The costs and expenses related to the
retention of third parties shall be the sole cost and expense of the
Company except to the extent the third party is retained to make
decisions to invest in
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and dispose of Mortgage Assets, provide administrative, data processing
or clerical services, prepare the financial records of the Company or
prepare a report summarizing the Company's acquisitions of Mortgage
Assets, portfolio compensation and characteristics, credit quality (if
applicable) or performance of the portfolio, in which case it shall be
at the sole cost and expense of the Advisor unless otherwise approved
by the Board of Directors (collectively, "Advisor Obligations").
2.4.3 Affiliates. Notwithstanding anything contained in this
Agreement to the contrary, the Advisor shall have the right to cause
any services under this Agreement to be rendered by the Advisor's
employees or Affiliates of the Advisor. The Company shall pay or
reimburse the Advisor or its Affiliates for the cost and expense of
performing services by the Affiliate if (i) the costs and expenses of
such Affiliate would have been reimbursable under this Agreement if
such Affiliate were an unaffiliated third party, and (ii) the costs and
expenses of such Affiliate have been approved by a majority of the
Unaffiliated Directors.
3. Additional Activities of the Advisor and its Affiliates.
3.1 Other Activities of the Advisor. Except as provided in the last
sentence of this Section 3.1, nothing in this Agreement shall (i) prevent the
Advisor, any Sub-Advisor or any of their respective Affiliates, officers,
directors or employees, from engaging in other businesses or from rendering
services of any kind to any other person or entity, including, without
limitation, investing in, or rendering advisory service to others investing in,
any type of Mortgage Assets or other real estate investments (including, without
limitation, investments that meet the principal investment objectives of the
Company), whether or not the investment objectives or policies of any such other
person or entity are similar to those of the Company, or (ii) in any way bind or
restrict the Advisor, any Sub-Advisor or any of their respective Affiliates,
officers, directors or employees from buying, selling or trading any securities
or commodities for their own accounts or for the account of others for whom the
Advisor, the Sub-Advisor or any of their respective Affiliates, officers,
directors or employees may be acting. The Company acknowledges that the Advisor
will base allocation decisions on the procedures the Advisor reasonably and in
good faith considers fair and equitable, including, without limitation, such
considerations as investment objectives, restrictions and time horizon,
availability of cash and the amount of existing holdings. While information and
recommendations supplied to the Company shall, in the Advisor's reasonable and
good faith judgment, be appropriate under the circumstances and in light of the
investment objectives and policies of the Company, they may be different from
the information and recommendations supplied by the Advisor, any Sub-Advisor,
any Affiliate of the Advisor or any Sub-Advisor to other investment companies,
funds and advisory accounts. The Company shall be entitled to equitable
treatment under the circumstances in receiving information, recommendations and
any other services, but the Company recognizes that it is not entitled to
receive preferential treatment as compared with the treatment given by the
Advisor, any Sub-Advisor, any Affiliate of the Advisor or any Sub-Advisor to any
investment company, fund or advisory account other than any fund or advisory
account which contains only funds invested by the Advisor (and not of any of its
clients or customers) or its officers and directors. Notwithstanding anything to
the contrary in this Section 3.1, for so long as the Advisor is the exclusive
advisor of the Company (unless the Advisor is not the exclusive advisor of the
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Company because the Company has engaged a Sub-Advisor) pursuant to this
Agreement, the Advisor shall not sponsor any other residential mortgage REIT
that invests primarily in mortgages for the acquisition of, development of and
construction on real estate in the Las Vegas, Nevada area unless otherwise
approved by a majority of the Unaffiliated Directors.
3.2 Service to the Company; Execution of Documents. Directors,
officers, employees and agents of the Advisor and its Affiliates may serve as
trustees, directors, officers, employees, agents, nominees or signatories for
the Company or any subsidiary of the Company, to the extent permitted by the
Governing Instruments, as from time to time amended, or by any resolutions duly
adopted by the Board of Directors pursuant to the Governing Instruments. When
executing documents or otherwise acting in such capacities for the Company, such
persons shall use their respective titles in the Company.
4. Bank Accounts. At the direction of the Board of Directors, the Advisor may
establish and maintain one or more bank accounts in the name of the Company or
any subsidiary of the Company, and may collect and deposit into any such account
or accounts, and disburse funds from any such account or accounts in a manner
consistent with this Agreement, including, without limitation, the following:
(a) the payment of the Base Management Compensation and the Incentive Management
Compensation, (b) the payment (or advance) of reimbursable costs and expenses,
and (c) such other amounts authorized by the Board of Directors. The Advisor
shall from time to time render appropriate accountings of such collections and
payments to the Board of Directors and, upon request, to the auditors of the
Company or any subsidiary of the Company.
5. Records; Confidentiality. The Advisor shall maintain appropriate and accurate
books of account and records relating to services performed under this
Agreement, and such books of account and records shall be accessible for
inspection by representatives (including the auditors) of the Company or any
subsidiary of the Company at any time during normal business hours. Except in
the ordinary course of business of the Company, the Advisor shall, and shall use
commercially reasonable efforts to cause each of its Affiliates to, keep
confidential any and all information they (or such Affiliates) may obtain from
time to time in connection with the services they (or such Affiliates) render
under this Agreement.
6. Compensation of the Advisor.
6.1 Base Management Compensation. For services rendered under this
Agreement, the Company shall pay to the Advisor quarterly in arrears commencing
on the Effective Date annual base management compensation equal to 1% of the
first $200,000,000 of Average Invested Assets during each fiscal year, plus 0.8%
of the Average Invested Assets during such year in excess of $200,000,000 (the
"Base Management Compensation"). The portion of the Base Management Compensation
payable each fiscal quarter shall be calculated by the Advisor within 15 days
after the end of such quarter, and a written statement documenting such
calculation in reasonable detail shall be promptly delivered to the Company
thereafter. The Company shall pay any amount payable pursuant to this Section
6.1 for such quarter within 15 days after the receipt of the written statement
setting forth the computation of the Base Management Compensation, or, at the
Advisor's election, the Advisor may deduct such amount
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from the Company's account or accounts, in any case without demand, deduction,
offset or delay (other than any deduction or offset for the liquidated sum of
any Advisor Refund).
6.2 Calculation of Incentive Management Compensation. In addition to
the Base Management Compensation, the Advisor shall receive incentive management
compensation for each fiscal quarter (the "Incentive Management Compensation").
6.2.1 The Incentive Management Compensation shall be
calculated by the Advisor and paid or refunded (as applicable) as
follows:
(1) At the end of each of the first three fiscal
quarters during each fiscal year, the Advisor shall calculate
the Tiered Percentage of the difference of (i) the Net Income
for such quarter (or lesser portion thereof), minus (ii) the
Threshold Return for such quarter (or lesser portion thereof)
(the "Quarterly Incentive Amount"). If the Quarterly Incentive
Amount is a positive number, then at the end of each such
quarter the Company shall pay the Advisor the Quarterly
Incentive Amount.
(2) At the end of each fiscal year and upon any
termination of this Agreement, the Advisor shall calculate the
Tiered Percentage of the difference of (i) the Net Income for
such year (or lesser portion thereof), minus (ii) the
Threshold Return for such year (or lesser portion thereof)
(the "Annual Incentive Amount"). If the aggregate of the
Quarterly Incentive Amounts received by the Advisor for such
year (but not taking into account any prior years) is less
than the Annual Incentive Amount, then the Company shall pay
the Advisor such shortfall (the "Remaining Amount"). On the
other hand, if the aggregate of the Quarterly Incentive
Amounts received by the Advisor during such year (but not
taking into account any prior years) exceeds the Annual
Incentive Amount, then the Advisor shall pay the Company such
excess (the "Advisor Refund"). The Advisor Refund for any
particular year shall not exceed the aggregate of the
Quarterly Incentive Amounts received by the Advisor during
such year.
6.2.2 The "Tiered Percentage" shall mean for any period the
weighted average of the following percentage rates (weighting to be
based on Average Invested Assets attributable to each percentage rate):
(i) 20% for the first $200,000,000 of Average Invested Assets; and (ii)
10% for the Average Invested Assets in excess of $200,000,000.
6.2.3 The "Threshold Return" shall mean for any period the
amount of Net Income for such period that would produce an annualized
return on our average invested assets equal to the sum of (i) the
Ten-Year U.S. Treasury Rate for such period plus (ii) 1.0%.
6.2.4 Payment Procedure. The Advisor shall calculate the
Incentive Management Compensation, the Quarterly Incentive Amount, any
Remaining Amount and any Advisor Refund and deliver to the Company a
written statement setting forth such computation in reasonable detail
within 15 days after the end of each fiscal quarter, fiscal year and
after the date of any termination of this Agreement, as applicable. The
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Company shall pay to the Advisor all Quarterly Incentive Amounts and
all Remaining Amounts (or, at the Advisor's election, the Advisor may
deduct such amount from the Company's account or accounts) with respect
to each fiscal quarter or year (or lesser portion thereof) within 15
days following the delivery to the Company of the written statement
setting forth the computation of the Incentive Management Compensation
for such quarter or year (or lesser portion thereof), as applicable,
without demand, deduction, offset or delay (other than any deduction or
offset for the liquidated sum of any Advisor Refund). The Advisor shall
pay the Advisor Refund, if any, with respect to a particular fiscal
year within 15 days following the delivery to the Company of the
written statement setting forth the computation of the Incentive
Management Compensation for such year (or lesser portion thereof),
without demand or delay. In connection with the Company's annual audit
(or any audit upon termination of this Agreement), the Advisor shall
determine any year-end adjustments to the Incentive Management
Compensation and Advisor Refund payable under this Section 6.2 and
deliver to the Company a written statement setting forth such
computation within 45 days after the end of each fiscal year. Any
required adjustments to the Incentive Management Compensation or the
Advisor Refund shall be paid by the Company to the Advisor or by the
Advisor to the Company, respectively, within 15 days after delivery of
such computation to the Company by the Advisor, without demand,
deduction, offset or delay (other than any deduction or offset for the
liquidated sum of any Advisor Refund).
6.2.5 Compensation Limitation. Notwithstanding any other
provision of this Section 6, the Total Operating Expenses of the
Company shall (in the absence of a satisfactory showing to the
contrary) be deemed to be excessive if they exceed in any fiscal year
the greater of 2% of its Average Invested Assets or 25% of its Net
Income for such year. In the event the Independent Directors do not
determine such excess expenses are justified, the Advisor agrees to
reimburse the Company at the end of the twelve month period the amount
by which the aggregate annual expenses paid or incurred by the Company
exceed the limitations herein provided.
6.2.6 Payment in Cash. All Incentive Management Compensation
shall be paid by the Company in cash. Any Advisor Refund shall also be
paid in cash.
6.3 Annual Reconciliation. The calculation of the Base Management
Compensation and the Incentive Management Compensation shall be subject to audit
and reconciliation at the end of each fiscal year and upon any termination of
this Agreement. If at any time the Advisor disagrees with such audit and
reconciliation and the dispute cannot be resolved between the Unaffiliated
Directors and the Advisor within 10 business days after the Advisor's receipt of
such audit and reconciliation and provides written notice to the Company of the
dispute (the "Reconciliation Notice"), then the matter shall be resolved by an
independent auditor of recognized standing selected jointly by the Unaffiliated
Directors and the Advisor within not more than 20 days after the Reconciliation
Notice. In the event the Unaffiliated Directors and the Advisor cannot agree
with respect to such selection within the aforesaid 20 day time-frame, the
Unaffiliated Directors shall select one such independent auditor and the Advisor
shall each select one independent auditor within five business days after the
expiration of the 20 day period, with one additional such auditor (the "Last
Auditor") to be selected by the auditors so designated within five business days
after their selection. Any decision made by the auditors shall be
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deemed final and binding upon the Board of Directors and the Advisor and shall
be delivered to the Advisor and the Company within not more than 15 days after
the selection of the Last Auditor. The expenses of the auditors shall be paid by
the party with the estimate which deviated the furthest from the final valuation
decision made by the auditors.
7. Expenses of the Advisor and the Company.
7.1 Expenses of the Advisor. The Advisor shall be responsible for the
following expenses:
7.1.1 employment expenses of the personnel employed by the
Advisor (including the officers of the Company which are also employed
by the Advisor), including, without limitation, salaries, wages,
payroll taxes and the cost of employee benefit plans of such personnel;
7.1.2 rent, telephone, utilities, office furniture, equipment,
machinery and other office, internal and overhead expenses of the
Advisor required for the Company's day-to-day operations, including
bookkeeping, clerical and back-office services provided by the Advisor,
provided, however, that the Company shall reimburse the Advisor for the
Company's pro rata portion of such rent, telephone, utilities, office
furniture, equipment, machinery and other office, internal and overhead
expenses to the extent that the Company's employees, officers,
representatives and/or agents (who are not also employed by the
Advisor) use such facilities or incur such expenses; and
7.1.3 unless otherwise approved by the Board of Directors, the
cost and expense of the Sub-Advisor, if any.
7.2 Expenses of the Company. The Company shall pay all of the costs and
expenses of the Company and the Advisor incurred on behalf of the Company or any
subsidiary or in connection with this Agreement, excepting only those expenses
that are specifically the responsibility of the Advisor pursuant to Section 7.1
of this Agreement. Without limiting the generality of the foregoing, it is
specifically agreed that the following costs and expenses of the Company or any
subsidiary of the Company shall be paid by the Company and shall not be paid by
the Advisor or the Affiliates of the Advisor:
7.2.1 all costs and expenses associated with the formation and
capital raising activities of the Company and its subsidiaries,
including, without limitation, the costs and expenses of the
preparation of the Company's registration statements, and any and all
costs and expenses of an initial public offering of the Company, any
subsequent offerings and any filing fees and costs of being a public
company, including, without limitation, filings with the Securities and
Exchange Commission, the National Association of Securities Dealers,
and any exchange or over-the-counter market, among other such entities;
7.2.2 all costs and expenses in connection with the
acquisition, disposition, financing, hedging, administration and
ownership of the Company's or any subsidiary's investment assets
(including,
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without limitation, the Mortgage Assets) and, including, without
limitation, costs and expenses incurred in contracting with third
parties, including Affiliates of the Advisor, to provide such services,
such as legal fees, accounting fees, consulting fees, trustee fees,
appraisal fees, insurance premiums, commitment fees, brokerage fees,
guaranty fees, ad valorem taxes, costs of foreclosure, maintenance,
repair and improvement of property and premiums for insurance on
property owned by the Company or any subsidiary of the Company;
7.2.3 all costs and expenses relating to the acquisition of,
and maintenance and upgrades to, the Company's portfolio accounting
systems;
7.2.4 all costs and expenses of money borrowed by the Company
or its subsidiaries, including, without limitation, principal, interest
and the costs associated with the establishment and maintenance of any
credit facilities, warehouse loans and other indebtedness of the
Company and its subsidiaries (including commitment fees, legal fees,
closing and other costs);
7.2.5 all taxes and license fees applicable to the Company or
any subsidiary of the Company, including interest and penalties
thereon;
7.2.6 all legal, audit, accounting, underwriting, brokerage,
listing, filing, rating agency, registration and other fees, printing,
engraving, clerical, personnel and other expenses and taxes incurred in
connection with the issuance, distribution, transfer, registration and
stock exchange listing of the Company's or any subsidiary's equity
securities or debt securities;
7.2.7 other than for the Advisor Obligations, all fees paid to
and expenses of third-party advisors and independent contractors,
consultants, advisors and other agents (other than the Advisor or any
Sub-Advisor) engaged by the Company or any subsidiary of the Company or
by the Advisor for the account of the Company or any subsidiary of the
Company (other than the Advisor or Sub-Advisor) and all employment
expenses of the personnel employed by the Company or any subsidiary of
the Company (including, without limitation, a chief financial officer
of the Company, but excluding any personnel which are also employed by
the Advisor or Sub-Advisor), including, without limitation, the
salaries, wages, equity based compensation of such personnel, payroll
taxes and the incremental cost for administering employee benefit plans
of the Advisor which are used by such personnel;
7.2.8 all insurance costs incurred by the Company or any
subsidiary of the Company, including, without limitation, any costs to
obtain liability or other insurance to indemnify the Advisor and
underwriters of any securities of the Company;
7.2.9 all custodian, transfer agent and registrar fees and
charges;
7.2.10 all compensation and fees paid to directors of the
Company or any subsidiary of the Company (excluding those directors who
are also employees of the Advisor), all expenses of directors of the
Company or any subsidiary of the Company (including those directors who
are also employees of the Advisor), the cost of directors
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and officers liability insurance and premiums for errors and omissions
insurance, and any other insurance deemed necessary or advisable by the
Board of Directors for the benefit of the Company and its directors and
officers (including those directors who are also employees of the
Advisor);
7.2.11 all third-party legal, accounting and auditing fees and
expenses and other similar services relating to the Company's or any
subsidiary's operations (including, without limitation, all quarterly
and annual audit or tax fees and expenses);
7.2.12 all legal, expert and other fees and expenses relating
to any actions, proceedings, lawsuits, demands, causes of action and
claims, whether actual or threatened, made by or against the Company,
or which the Company is authorized or obligated to pay under applicable
law or its Governing Instruments or by the Board of Directors;
7.2.13 any judgment or settlement of pending or threatened
proceedings (whether civil, criminal or otherwise) against the Company
or any subsidiary of the Company, or against any trustee, director or
officer of the Company or any subsidiary of the Company in his capacity
as such for which the Company or any subsidiary of the Company is
required to indemnify such trustee, director or officer by any court or
governmental agency, or settlement of pending or threatened
proceedings;
7.2.14 all travel and related expenses of directors, officers
and employees of the Company and the Advisor, incurred in connection
with attending meetings of the Board of Directors or holders of
securities of the Company or any subsidiary of the Company or
performing other business activities that relate to the Company or any
subsidiary of the Company, including, without limitations, travel and
expenses incurred in connection with the purchase, financing,
refinancing, sale or other disposition of Mortgage Assets or other
investments of the Company; provided, however, that the Company shall
only be responsible for a proportionate share of such expenses, as
determined by the Advisor in good faith, where such expenses were not
incurred solely for the benefit of the Company;
7.2.15 all expenses of organizing, modifying or dissolving the
Company or any subsidiary of the Company and costs preparatory to
entering into a business or activity, costs of winding up or disposing
of a business of activity of the Company or its subsidiaries;
7.2.16 all expenses relating to payments of dividends or
interest or distributions in cash or any other form made or caused to
be made by the Board of Directors to or on account of holders of the
securities of the Company or any subsidiary of the Company, including,
without limitation, in connection with and dividend reinvestment plan;
7.2.17 all expenses of third parties relating to
communications to holders of equity securities or debt securities
issued by the Company or any subsidiary of the Company and the other
bookkeeping and clerical work necessary in maintaining relations with
holders of such securities and in complying with the continuous
reporting and other requirements of governmental bodies or agencies,
including any costs of computer
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services in connection with this function, the cost of printing and
mailing certificates for such securities and proxy solicitation
materials and reports to holders of the Company's or any subsidiary's
securities and reports to third parties required under any indenture to
which the Company or any subsidiary of the Company is a party;
7.2.18 subject to Section 7.1, all expenses relating to any
office or office facilities maintained by the Company or any subsidiary
of the Company exclusive of the office of the Advisor and/or Affiliates
of the Advisor, including, without limitation, rent, telephone,
utilities, office furniture, equipment, machinery and other office
expenses for the Company's chief financial officer and any other
persons the Board of Directors authorizes the Company to hire;
7.2.19 all costs and expenses related to the design and
maintenance of the Company's web site or sites and associated with any
computer software or hardware that is used solely for the Company;
7.2.20 other than for the Advisor Obligations, all other costs
and expenses relating to the Company's business and investment
operations, including, without limitation, the costs and expenses of
acquiring, owning, protecting, maintaining, developing and disposing of
Mortgage Assets, including, without limitation, appraisal, reporting,
audit and legal fees;
7.2.21 other than for the Advisor Obligations, all other
expenses actually incurred by the Advisor, its Affiliates or any
Sub-Advisor or their respective officers, employees, representatives or
agents, or any Affiliates thereof, which are reasonably necessary for
the performance by the Advisor of its duties and functions under this
Agreement (including, without limitation, any fees or expenses relating
to the Company's compliance with all governmental and regulatory
matters); and
7.2.22 all other expenses of the Company or any subsidiary of
the Company that are not the responsibility of the Advisor under
Section 7.1 of this Agreement.
7.3 Expense Reimbursement to the Advisor. Any individual cost or
expense exceeding $100,000 (or such other limit as may be approved by the Board
of Directors from time to time) shall be approved by the Board of Directors,
unless such item was previously reflected in the Company's budget approved by
the Board of Directors. Costs and expenses incurred by the Advisor on behalf of
the Company shall be reimbursed monthly to the Advisor or, at the Advisor's
election, offset against any funds of the Company in the Company's account or
accounts held by the Advisor or otherwise. The Advisor shall prepare a written
statement in reasonable detail documenting the costs and expenses of the Company
and those incurred by the Advisor on behalf of the Company during each month,
and shall deliver such written statement to the Company within 15 days after the
end of each month. Unless deducted directly by the Advisor as aforesaid, the
Company shall pay all amounts payable to the Advisor pursuant to this Section
7.3 within three days after the receipt of the written statement without demand,
deduction, offset or delay. Cost and expense reimbursement to the Advisor shall
be subject to adjustment at the end of each calendar year in connection with the
annual audit of the Company.
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8. Limits of Advisor Responsibility; Indemnity.
8.1 Limits of Advisor Responsibility. The Advisor shall have no
responsibility under this Agreement other than to render the services
specifically called for under this Agreement and shall not be responsible for
any action of the Board of Directors in following or declining to follow any
advice or recommendations of the Advisor, including, without limitation, as set
forth in Section 2.2.2 of this Agreement. The Advisor, any Sub-Advisor and their
respective Affiliates, directors, officers, stockholders, equity holders,
employees, representatives and agents, and any Affiliates thereof, shall not be
liable to the Company (including, without limitation, any stockholder thereof),
any issuer of mortgage securities, any subsidiary of the Company, its
subsidiary's stockholders, the Unaffiliated Directors, any credit-party, any
counter-party under any agreement or any other person whatsoever for any acts or
omissions, errors of judgment or mistakes of law by the Advisor, any
Sub-Advisor, or their respective Affiliates, directors, officers, employees,
representatives or agents, or any Affiliates thereof, under or in connection
with this Agreement, except to the extent that the Unaffiliated Directors shall
have made a reasonable good faith determination based upon findings of fact
which are disclosed to the Advisor that the Advisor was grossly negligent, acted
with reckless disregard or engaged in willful misconduct or active fraud while
discharging its material duties under this Agreement.
8.2 Indemnification. The Company and its subsidiaries shall reimburse,
indemnify and hold harmless the Advisor, any Sub-Advisor, and their respective
Affiliates, directors, officers, stockholders, equity holders, employees,
representatives and agents, and any Affiliates thereof (each, an "indemnitee")
from and against any and all expenses, losses, costs, damages, liabilities,
demands, charges and claims of any nature whatsoever, actual or threatened
(including, without limitation, reasonable attorneys' fees), arising from or in
respect of any acts or omissions, errors of judgment or mistakes of law (or any
alleged acts or omissions, errors of judgment or mistakes of law) performed or
made while acting in any capacity contemplated under this Agreement or pursuant
to any underwriting agreement or similar agreement to which Advisor is a party
that is related to the Company's activities. Notwithstanding the foregoing, the
Company shall have no indemnification obligation under this Section 8.2 to the
extent that the Unaffiliated Directors shall have made a reasonable good faith
determination based upon findings of fact which are disclosed to the Advisor
that the Advisor was grossly negligent, acted with reckless disregard or engaged
in willful misconduct or active fraud while discharging its material duties
under this Agreement.
9. No Joint Venture. The Company and the Advisor are not partners or
joint venturers with each other, and nothing in this Agreement shall be
construed to make them such partners or joint venturers or impose any liability
as such on any of them. The Advisor is an independent contractor and, except as
expressly provided or authorized in this Agreement, shall have no authority to
act for or represent the Company.
10. Term; Termination; Termination Fee.
10.1 Term. This Agreement shall commence on the Effective Date and
shall have an initial term of one year. Thereafter, this Agreement shall
automatically renew for an additional year, unless terminated in accordance with
the terms and conditions of this Agreement.
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10.2 Termination Without Cause. Notwithstanding any other provision of
this Agreement to the contrary, after the first anniversary of the Effective
Date, (i) the Company shall have the right to terminate this Agreement without
cause at any time after 60-days prior written notice to the Advisor and the
affirmative vote of a majority of the Unaffiliated Directors to do so and (ii)
the Advisor shall have the right to terminate this Agreement without cause at
any time after 60-days prior written notice to the Board of Directors. If the
Company terminates this Agreement without cause, the Company shall make the
following payments to the Advisor within 15 days after the effective date of
termination without demand, deduction, offset or delay or, at the Advisor's
election, the Advisor may deduct such payments from any account or accounts of
the Company all unpaid reimbursable costs and expenses permitted under the
Agreement and all earned and unpaid Base Management Compensation and Incentive
Management Compensation payments.
10.3 Termination by Company for Cause. In the event that the
Unaffiliated Directors shall have made a reasonable good faith determination
based on findings of fact which are disclosed to the Advisor that cause exists,
then a majority of the Unaffiliated Directors shall have the right to terminate
this Agreement for cause at the following time: (i) immediately, if the
Unaffiliated Directors determined in good faith that its claims are based
primarily on criminal activity or active fraud or (ii) after not less than 60
days after written notice to the Advisor, if the Unaffiliated Directors
determined in good faith that its claims are based other than as described in
clause (i) above and the Unaffiliated Directors shall have determined that cause
still exists after written notice to the Advisor disclosing the findings of the
Unaffiliated Directors and a reasonable opportunity to cure. In the event that
the Agreement is terminated for "cause" in accordance with the provisions of
this Section 10.3, the Company shall pay the Advisor all unpaid reimbursable
costs and expenses and all earned and unpaid Base Management Compensation and
Incentive Management Compensation payments.
10.4 Change of Control. In the event of a Change of Control of the
Company, the Advisor shall have the right to terminate this Agreement upon 60
days prior written notice, provided that the Advisor delivers such notice within
90 days after such Change of Control has occurred. In the event of a termination
of this Agreement in connection with a Change in Control, the Company shall pay
the Advisor all unpaid reimbursable costs and expenses permitted under the
Agreement and all earned and unpaid Base Management Compensation and Incentive
Management Compensation payments.
11. Action Upon Termination. From and after the effective date of termination of
this Agreement, except as specified in Section 10.2, 10.3 or 10.4 of this
Agreement, the Advisor shall not be entitled to any payment or compensation as
of the date of termination shall terminate and be cancelled without
consideration. Upon such termination, the Advisor shall promptly:
11.1.1 pay over to the Company or any subsidiary of the
Company all money collected and held for the account of the Company or
any subsidiary of the Company pursuant to this Agreement;
11.1.2 pay over to the Company any unpaid Advisor Refund;
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11.1.3 deliver to the Board of Directors an accounting,
including a statement showing all payments collected by it and a
statement of all money held by it, covering the period following the
date of the last accounting furnished to the Board of Directors with
respect to the Company or any subsidiary of the Company; and
11.1.4 deliver to the Board of Directors all property and
documents of the Company or any subsidiary of the Company then in the
custody of the Advisor.
12. Limited Right to Offset; Survival of Payments. Notwithstanding anything to
the contrary, the Company shall not have any right to offset any amount
whatsoever from any payments in Sections 6, 7, 10, 11 or otherwise and the
Company's obligation to make such payments shall survive the termination of this
Agreement, except that the Company shall have the right to offset against the
liquidated sum of any Advisor Refund.
13. Assignments.
13.1 Assignment by the Advisor. Other than transfers and assignments by
operation of law (including transfers in connection with a change of control of
the Advisor), this Agreement shall terminate automatically in the event that the
Advisor assigns this Agreement, unless such assignment is consented to in
advance in writing by the Company with the consent of a majority of the
Unaffiliated Directors. In the event an assignment by the Advisor is consented
to by the Company in accordance with this Section 13.1, such assignment shall
bind the assignee under this Agreement in the same manner as the Advisor is
bound, and the Advisor shall be released from all of its obligations, duties and
responsibilities under this Agreement and all liability therefore and in respect
hereof. In addition, the assignee shall execute and deliver to the Company a
counterpart of this Agreement naming such assignee as Advisor.
13.2 Assignment by the Company. This Agreement shall not be assigned by
the Company without the prior written consent of the Advisor.
14. Release of Money or Other Property Upon Written Request. The Advisor agrees
that any money or other property of the Company or any subsidiary of the Company
held by the Advisor under this Agreement shall be held by the Advisor as
custodian for the Company or such subsidiary, and the Advisor's records shall be
appropriately marked clearly to reflect the ownership of such money or other
property by the Company or such subsidiary.
14.1 Procedures. Upon the receipt by the Advisor of a written request
signed by a duly authorized officer of the Company or an authorized member of
the Board of Directors requesting the Advisor to release to the Company or any
subsidiary of the Company any money or other property then held by the Advisor
for the account of the Company or any subsidiary of the Company under this
Agreement, the Advisor shall release such money or other property to the Company
or such subsidiary of the Company within a reasonable period of time, but in no
event later than 90 days following such request; provided, however, that the
Advisor shall have the right to offset any Base Management Compensation,
Incentive Management Compensation reimbursable costs or any other sums due and
owning to the Advisor under this Agreement against payment of any money or
property held by the Advisor for the account of the Company or any subsidiary of
the Company under this Agreement.
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14.2 Limitations. The Advisor, any Sub-Advisor and their respective
Affiliates, directors, officers, stockholders, equity holders, employees,
representatives and agents, and any Affiliates thereof, shall not be liable to
the Company, any subsidiaries of the Company, the Unaffiliated Directors or the
Company's or its subsidiaries' stockholders for any acts performed or omissions
to act by the Company or any subsidiary of the Company in connection with the
money or other property released to the Company or any subsidiary of the Company
in accordance with this Section 14, except to the extent that the Board of
Directors shall have made a reasonable good faith determination based upon
findings of fact which are disclosed to the Advisor that the Advisor was grossly
negligent, acted with reckless disregard or engaged in willful misconduct or
active fraud while discharging its material duties under this Agreement.
14.3 Indemnification. The Company and any subsidiary of the Company
shall indemnify the Advisor, any Sub-Advisor and their respective Affiliates,
directors, officers, stockholders, equity holders, employees, representatives
and agents, and any Affiliates thereof, against any and all expenses, costs,
losses, damages, liabilities, demands, charges and claims of any nature
whatsoever, which arise in connection with the Advisor's (or a Sub-Advisor's)
release of such money or other property to the Company or any subsidiary of the
Company in accordance with the terms of this Section 14, except to the extent
that the Board of Directors shall have made a reasonable good faith
determination based upon findings of fact which are disclosed to the Advisor
that the Advisor was grossly negligent, acted with reckless disregard or engaged
in willful misconduct or active fraud while discharging its material duties
under this Agreement. Indemnification pursuant to this provision shall be in
addition to any right of the Advisor, any Sub-Advisor and their respective
Affiliates, directors, officers, stockholders, equity holders, employees,
representatives and agents, and any Affiliates thereof, to indemnification under
Section 8 of this Agreement.
15. Representations, Warranties and Covenants.
15.1 Company in Favor of the Advisor. The Company hereby represents and
warrants to the Advisor as follows:
15.1.1 Due Formation. The Company is duly organized, validly
existing and in good standing under the laws of Maryland, has the power
to own its assets and to transact the business in which it is now
engaged and is duly qualified to do business and is in good standing
under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification,
except for failures to be so qualified, authorized or licensed that
could not in the aggregate have a material adverse effect on the
business operations, assets or financial condition of the Company and
its subsidiaries, taken as a whole. The Company does not do business
under any fictitious business name.
15.1.2 Power and Authority. The Company has the power and
authority to execute, deliver and perform this Agreement and all
obligations required under this Agreement and has taken all necessary
action to authorize this Agreement on the terms and conditions hereof
and the execution, delivery and performance of this Agreement and all
obligations required under this Agreement. Except as shall have been
obtained, no consent of any other person, including, without
limitation, stockholders and creditors of
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the Company, and no license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required by the Company
in connection with this Agreement or the execution, delivery,
performance, validity or enforceability of this Agreement and all
obligations required under this Agreement. This Agreement has been, and
each instrument or document required under this Agreement will be,
executed and delivered by a duly authorized officer of the Company, and
this Agreement constitutes, and each instrument or document required
under this Agreement when executed and delivered under this Agreement
will constitute, the legally valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
15.1.3 Execution, Delivery and Performance. The execution,
delivery and performance of this Agreement and the documents or
instruments required under this Agreement will not violate any
provision of any existing law or regulation binding on the Company, or
any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on the Company, or the Governing
Instruments of, or any securities issued by, the Company or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Company is a party or by which the Company or
any of its assets may be bound, the violation of which would have a
material adverse effect on the business operations, assets or financial
condition of the Company and its subsidiaries, taken as a whole, and
will not result in, or require, the creation or imposition of any lien
on any of its property, assets or revenues pursuant to the provisions
of any such mortgage, indenture, lease, contract or other agreement,
instrument or undertaking (other than the pledge of amounts payable to
the Advisor under this Agreement to secure the Advisor's obligations to
its lenders).
15.2 Advisor in Favor of the Company. The Advisor hereby represents and
warrants to the Company as follows:
15.2.1 Due Formation. The Advisor is duly organized, validly
existing and in good standing under the laws of Nevada, has the power
to own its assets and to transact the business in which it is now
engaged and is duly qualified to do business and is in good standing
under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification,
except for failures to be so qualified, authorized or licensed that
could not in the aggregate have a material adverse effect on the
business operations, assets or financial condition of the Advisor and
its subsidiaries, taken as a whole. The Advisor does not do business
under any fictitious business name.
15.2.2 Power and Authority. The Advisor has the power and
authority to execute, deliver and perform this Agreement and all
obligations required under this Agreement and has taken all necessary
corporate action to authorize this Agreement on the terms and
conditions hereof and the execution, delivery and performance of this
Agreement and all obligations required under this Agreement. Except as
shall have been obtained, no consent of any other person including,
without limitation, stockholders and creditors of the Advisor, and no
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any
governmental
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authority is required by the Advisor in connection with this Agreement
or the execution, delivery, performance, validity or enforceability of
this Agreement and all obligations required under this Agreement. This
Agreement has been and each instrument or document required under this
Agreement will be executed and delivered by a duly authorized officer
of the Advisor, and this Agreement constitutes, and each instrument or
document required under this Agreement when executed and delivered
under this Agreement will constitute, the legally valid and binding
obligation of the Advisor enforceable against the Advisor in accordance
with its terms.
15.2.3 Execution, Delivery and Performance. The execution,
delivery and performance of this Agreement and the documents or
instruments required under this Agreement will not violate any
provision of any existing law or regulation binding on the Advisor, or
any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on the Advisor, or the governing
instruments of, or any securities issued by, the Advisor or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Advisor is a party or by which the Advisor or
any of its assets may be bound, the violation of which would have a
material adverse effect on the business operations, assets or financial
condition of the Advisor and its subsidiaries, taken as a whole, and
will not result in, or require, the creation or imposition of any lien
on any of its property, assets or revenues pursuant to the provisions
of any such mortgage indenture, lease, contract or other agreement,
instrument or undertaking.
16. Notices. Unless expressly provided otherwise in this Agreement, all notices,
requests, demands and other communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given, made
and received when (1) delivered by hand, (2) otherwise delivered against receipt
therefor, or (3) upon actual receipt of registered or certified mail, postage
prepaid, return receipt requested. The parties may deliver to each other notice
by electronically transmitted facsimile copies, provided that such facsimile
notice is followed within 24 hours by any type of notice otherwise provided for
in this Section 16. Any notice shall be duly addressed to the parties as
follows:
if to the Company:
Desert Capital REIT, Inc.
0000 Xxxxxxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
with a copy given in the manner prescribed above (which shall
not constitute notice), to:
Xxxxx, Xxxxxxx & Xxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
if to the Advisor:
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Xxxxxx Management Company, Ltd.
0000 Xxxxxxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this Section 16 for the giving of notice.
17. Binding Nature of Agreement; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns as provided in this
Agreement.
18. 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 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.
19. Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of Maryland,
notwithstanding any Maryland or other conflict of law provisions to the
contrary.
20. No Waivers. 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 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.
21. Titles Not to Affect Interpretation. The titles of paragraphs and
subparagraphs 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.
22. 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
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
23. Provisions Severable. The provisions of this Agreement are independent of
and severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
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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. Attorneys' Fees. Should any action or other proceeding be necessary to
enforce any of the provisions of this Agreement or the various transactions
contemplated hereby, the prevailing party will be entitled to recover its actual
reasonable attorneys' fees and expenses from the non-prevailing party.
26. Amendments. This Agreement may not be amended, modified or changed (in whole
or in part), except by a formal, definitive written agreement expressly
referring to this Agreement, which agreement is executed by all of the parties
hereto and, in the case of the Company, approved by a majority of the
Unaffiliated Directors. The parties hereto expressly acknowledge that no consent
or approval of the Company's stockholders is required in connection with any
amendment, modification or change to this Agreement.
27. Authority. Each signatory to this Agreement warrants and represents that he
is authorized to sign on behalf of and to bind the party on whose behalf he, she
or it is signing.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
"COMPANY"
Desert Capital REIT, Inc.,
a Maryland corporation
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
"ADVISOR"
XXXXXX MANAGEMENT COMPANY, LTD.,
a Nevada corporation
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
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