EXHIBIT 10.1
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT is entered into effective as of January 1,
1998, by and between Health and Retirement Properties Trust, a Maryland real
estate investment trust (the "Company"), and REIT Management & Research, Inc., a
Delaware corporation (the "Advisor").
WHEREAS, the Company was organized as a Maryland real estate investment
trust pursuant to a Declaration of Trust dated October 9, 1986 (the "Declaration
of Trust");
WHEREAS, the Advisor is a corporation organized for the purpose of
providing management and administrative services with respect to the ownership
of real property;
WHEREAS, in connection with its investments, the Company desires to
make use of the advice and assistance of the Advisor and certain sources of
information available to the Advisor, and to have the Advisor undertake the
duties and responsibilities hereinafter set forth, on behalf of and subject to
the supervision of the Company's Board of Trustees (the "Trustees"), all as
provided for herein;
WHEREAS, the Advisor is willing to render such services, subject to the
supervision of the Trustees, on the terms and conditions hereinafter set forth;
and
WHEREAS, the Company has qualified and intends to continue to qualify
as a real estate investment trust as defined in the Internal Revenue Code of
1986, as amended, (said Code, as in effect from time to time, together with any
regulations and rulings thereunder, being hereinafter referred to as the
"Internal Revenue Code").
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the parties hereto agree as follows:
1. General Duties of the Advisor. The Advisor shall use its best
efforts to present to the Company a continuing and suitable investment program
consistent with the investment policies and objectives of the Company. Subject
to the supervision of the Trustees and upon their direction, and consistent with
the provisions of the Declaration of Trust, the Advisor shall:
(a) serve as the Company's investment advisor, with its
obligations to include providing research and economic and statistical
data in connection with the Company's investments and recommending
changes in the Company's investment policies, when appropriate;
(b) investigate and evaluate investment opportunities and make
recommendations concerning such opportunities to the Trustees;
(c) manage the Company's short-term investments including the
acquisition and sale of money market instruments in accordance with the
Company's policies;
(d) administer the day-to-day operations of the Company;
(e) investigate, select and conduct relations and enter into
appropriate contracts on behalf of the Company with other individuals,
corporations and entities in furtherance of the investment activities
of the Company;
(f) upon request of the Trustees, act as attorney-in-fact or
agent in acquiring and disposing of investments and funds of the
Company and in handling, prosecuting and settling any claims of the
Company;
(g) upon request of the Trustees, invest and reinvest any money
of the Company;
(h) obtain for the Company, when appropriate, the services of
property managers or management firms to perform customary property
management services with regard to the real estate properties owned by
or in the possession of the Company, and perform such supervisory or
monitoring services on behalf of the Company with respect to the
activities of such property managers or management firms as would be
performed by a prudent owner, including but not limited to closely
supervising the activities of such property managers or management
firms, visiting the properties, participating in property management
budgeting, reviewing the accounting of property income and expenses,
reporting on the financial status of the properties and reviewing and
approving marketing plans, but excluding the actual on-site property
management functions performed by said property managers or management
firms;
(i) obtain for the Company such services as may be required for
other activities relating to the investment portfolio of the Company;
(j) administer such day-to-day bookkeeping and accounting
functions as are required for the proper management of the assets of
the Company, contract for audits and prepare or cause to be prepared
such reports as may be required by any governmental authority in
connection with the ordinary conduct of the Company's business,
including without limitation, periodic reports, returns or statements
required under the Securities Exchange Act of 1934, as amended, the
Internal Revenue Code, the securities and tax statutes of any
jurisdiction in which the Company is obligated to file such reports, or
the rules and regulations promulgated under any of the foregoing;
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(k) provide office space, office equipment and the use of
accounting or computing equipment when required, and provide personnel
necessary for the performance of the foregoing services; and
(l) from time to time, or at any time requested by the Trustees,
make reports thereto of its performance of the foregoing services to
the Company.
In performing its services under this Advisory Agreement, the Advisor
may utilize facilities, personnel and support services of various of its
Affiliates (as defined below). The Advisor shall be responsible for paying such
Affiliates for their personnel and support services and facilities out of its
own funds. Notwithstanding the above, the Company may request, and will pay for
the direct costs of, services provided by Affiliates of the Advisor provided
that such request is approved by a majority vote of the Trustees who are not
Affiliates of the Advisor and who do not perform any services for the Company
except as Trustee (the "Independent Trustees").
As used in this Agreement, the term "Affiliate" means, as to any
Person, (i) any other Person directly or indirectly controlling, controlled by
or under common control with such Person, (ii) any other Person that owns
beneficially, directly or indirectly, five percent (5%) or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, general partner or trustee of such Person or of
any Person controlling, controlled by or under common control with such Person
(excluding trustees who are not otherwise Affiliates of such Person). The term
"Person" means and includes individuals, corporations, limited partnerships,
general partnerships, limited liability companies, joint stock companies or
associations, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, and other entities.
2. Bank Accounts. The Advisor shall establish and maintain one or more
bank accounts in its own name or, at the direction of the Trustees, in the name
of the Company, and shall collect and deposit into such account or accounts and
disburse therefrom any monies on behalf of the Company, provided that no funds
in any such account shall be commingled with any funds of the Advisor or any
other Person. The Advisor shall from time to time render an appropriate
accounting of such collections and payments to the Trustees and to the auditors
of the Company.
3. Records. The Advisor shall maintain appropriate books of account and
records relating to services performed pursuant to this Agreement, which books
of account and records shall be available for inspection by representatives of
the Company upon reasonable notice during ordinary business hours.
4. Information Furnished Advisor. The Trustees shall at all times keep
the Advisor fully informed with regard to the investment policies of the
Company, the capitalization policy of the Company, and generally the Trustees'
then-current intentions as to the future of the Company. In particular, the
Trustees shall notify the Advisor promptly of their intention to sell
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or otherwise dispose of any of the Company's investments or to make any new
investment. The Company shall furnish the Advisor with a certified copy of all
financial statements, a signed copy of each report prepared by independent
certified public accountants, and such other information with regard to its
affairs as the Advisor may from time to time reasonably request. The Company
shall retain legal counsel and accountants to provide such legal and accounting
advice and services as the Advisor or the Trustees shall deem necessary or
appropriate to adequately perform the functions of the Company, and shall have
such legal or accounting opinions and advice as the Advisor shall reasonably
request.
5. REIT Qualification. Anything else in this Agreement to the contrary
notwithstanding, the Advisor shall refrain from any action (including, without
limitation, the furnishing or rendering of services to tenants of property or
managing real property) which, in its judgment made in good faith, or in the
judgment of the Trustees as transmitted to the Advisor in writing, would (a)
adversely affect the status of the Company as a real estate investment trust as
defined and limited in the Internal Revenue Code or which would make the Company
subject to the Investment Company Act of 1940, as amended, or (b) violate any
law, rule, regulation or statement of policy or any governmental body or agency
having jurisdiction over the Company or over its securities, or (c) otherwise
not be permitted by the Declaration of Trust or Bylaws of the Company, except if
such action shall be ordered by the Trustees, in which event the Advisor shall
promptly notify the Trustees of the Advisor's judgment that such action would
adversely affect such status or violate any such law, rule or regulation or the
Declaration of Trust or Bylaws of the Company and shall refrain from taking such
action pending further clarification or instructions from the Trustees. In
addition, the Advisor shall take such affirmative steps which, in its judgment
made in good faith, or in the judgment of the Trustees as transmitted to the
Advisor in writing, would prevent or cure any action described in (a), (b) or
(c) above.
6. Self-Dealing. Neither the Advisor nor any Affiliate of the Advisor
shall sell any property or assets to the Company or purchase any property or
assets from the Company, directly or indirectly, except as approved by a
majority of the Independent Trustees. In addition, except as otherwise provided
in Sections 1, 9 or 10 hereof, or except as approved by a majority of the
Independent Trustees, neither the Advisor nor any Affiliate of the Advisor shall
receive any commission or other remuneration, directly or indirectly, in
connection with the activities of the Company or any joint venture or
partnership in which the Company is a party. Except for compensation received by
the Advisor pursuant to Section 9 hereof, all commissions or other remuneration
received by the Advisor or an Affiliate of the Advisor and not approved by the
Independent Trustees under Sections 1 or 10 hereof or this Section 6 shall be
reported to the Company annually within ninety (90) days following the end of
the Company's fiscal year.
Upon request of any Trustee, the Advisor shall from time to time
promptly furnish the Company with information on a confidential basis as to any
investments within the Company's investment policies made by the Advisor for its
own account.
7. No Partnership or Joint Venture. The Company and the Advisor are not
partners or joint venturers with each other and neither the terms of this
Advisory Agreement nor the fact that
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the Company and the Advisor have joint interests in any one or more investments
shall be construed so as to make them such partners or joint venturers or impose
any liability as such on either of them.
8. Fidelity Bond. The Advisor shall not be required to obtain or
maintain a fidelity bond in connection with the performance of its services
hereunder.
9. Compensation. The Advisor shall be paid, for the services rendered
by it to the Company pursuant to this Advisory Agreement, an annual advisory fee
(the "Advisory Fee") equal to 0.7 percent of the Average Invested Capital (as
defined below) computed as of the last day of the Company's fiscal year up to
$250,000,000, plus 0.5 percent of the Average Invested Capital exceeding
$250,000,000. In addition, the Advisor shall be paid an annual incentive fee
(the "Incentive Fee") consisting of a number of shares of the Company's common
shares of beneficial interest ("Common Shares") with a value (determined as
provided below) equal to fifteen percent 15% of the product of (i) the weighted
average Common Shares of the Company outstanding on a fully diluted basis during
such year and (ii) the excess if any of "FFO Per Share" (as defined below) for
such year over the FFO Per Share for the preceeding year. However, in no event
shall the Incentive Fee payable in respect of any year exceed $.01 multiplied by
the weighted average number of Common Shares outstanding on a fully diluted
basis during such year. (The Advisory Fee and Incentive Fee are hereinafter
collectively referred to as the "Fees").
For purposes of this Agreement: "Average Invested Capital" of the
Company shall mean the average of the aggregate book value of the assets of the
Company invested, directly or indirectly, in equity interests in and loans
secured by real estate and personal property owned in connection with such real
estate, before reserves for depreciation or bad debts or other similar noncash
reserves, computed by taking the average of such values at the end of each month
during such period. "Cash Available for Distribution to Shareholders" shall
mean, for any period, the net cash flow from operations of the Company's
investments for such period less preferred dividends, if any, and such amounts
as the Trustees, in their sole discretion, shall determine are necessary or
appropriate to discharge current debts and liabilities of the Company and to
provide reasonable reserves for the payment of non-current debts and liabilities
of the Company and for the operations of the Company, including reserves for
replacements and capital improvements and reserves, if any, required in
connection with the ownership of the Company's properties and investments.
Calculation of Average Invested Capital and Cash Available for Distribution to
Shareholders shall be made annually by the Company's independent certified
public accountants.
The Advisory Fee shall be computed and paid within thirty (30) days
following the end of each fiscal month by the Company, and the Incentive Fee
shall be computed and paid within thirty (30) days following the public
availability of the Company's annual audited financial statements for each
fiscal year. Such computations shall be based upon the Company's monthly or
quarterly financial statements, as the case may be, and shall be in reasonable
detail. A copy of
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such computations shall promptly be delivered to the Advisor accompanied by
payment of the Fees shown thereon to be due and payable.
The payment of the aggregate annual Fees paid for any fiscal year shall
be subject to adjustment as of the end of each fiscal year. On or before the
30th day after public availability of the Company's annual audited financial
statements for each fiscal year, the Company shall deliver to the Advisor an
Officer's Certificate (a "Certificate") reasonably acceptable to the Advisor and
certified by an authorized officer of the Company setting forth (i) the Average
Invested Capital and Cash Available for Distribution to Shareholders for the
Company's fiscal year ended upon the immediately preceding December 31, and (ii)
the Company's computation of the Fees payable for said fiscal year.
If the aggregate annual Fees payable for said fiscal year as shown in
such Certificate exceed the aggregate amounts previously paid with respect
thereto by the Company, the Company shall include its check for such deficit and
deliver the same to the Advisor with such Certificate.
If the aggregate annual Fees payable for said fiscal year as shown in
such Certificate are less than the aggregate amounts previously paid with
respect thereto by the Company, the Company shall specify in such Certificate
whether the Advisor should (i) remit to the Company its check in an amount equal
to such difference or (ii) grant the Company a credit against the Fees next
coming due in the amount of such difference until such amount has been fully
paid or otherwise discharged.
For purposes of this Agreement: "FFO Per Share" shall mean (i) the
Company's consolidated net income, computed in accordance with generally
accepted accounting principles, before gain or loss on sale of properties and
extraordinary items, depreciation and other non-cash items, including the
Company's pro rata share of the funds from operations (determined in accordance
with this clause) for such year of (A) any unconsolidated subsidiary and (B) any
entity for which the Company accounts by the equity method of accounting,
divided by (ii) the weighted average number of Common Shares outstanding on a
fully diluted basis during such year.
Payment of the Incentive Fee shall be made by issuance of Common Shares
of Beneficial Interest under the Company's 1992 Incentive Share Award Plan. The
number of shares to be issued in payment of the Incentive Fee shall be the whole
number of shares (disregarding any fraction) equal to the value of the Incentive
Fee, as provided above, divided by the average closing price of the Company's
Common Shares of Beneficial Interest on the New York Stock Exchange during the
month of December in the year for which the computation is made.
10. Compensation for Additional Services. If, and to the extent that,
the Company shall request the Advisor to render services on behalf of the
Company other than those required to be rendered by the Advisor in accordance
with the terms of this Advisory Agreement, such
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additional services shall be compensated separately on terms to be agreed upon
between the Advisor and the Company from time to time.
11. Expenses of the Advisor. Without regard to the compensation
received by the Advisor from the Company pursuant to this Advisory Agreement,
the Advisor shall bear the following expenses incurred in connection with the
performance of its duties under this Advisory Agreement:
(a) employment expenses of the personnel employed by the
Advisor, including but not limited to, salaries, wages, payroll taxes
and the cost of employee benefit plans;
(b) fees and travel and other expenses paid to directors,
officers and employees of the Advisor, except fees and travel and other
expenses of such persons who are Trustees or officers of the Company
incurred in their capacities as Trustees or officers of the Company;
(c) rent, telephone, utilities, office furniture, equipment and
machinery (including computers, to the extent utilized) and other
office expenses of the Advisor, except to the extent such expenses
relate solely to an office maintained by the Company separate from the
office of the Advisor; and
(d) miscellaneous administrative expenses incurred in
supervising, monitoring and inspecting real property and other
investments of the Company or relating to performance by the Advisor of
its obligations hereunder.
12. Expenses of the Company. Except as expressly otherwise provided in
this Advisory Agreement, the Company shall pay all its expenses not payable by
the Advisor, and, without limiting the generality of the foregoing, it is
specifically agreed that the following expenses of the Company shall be paid by
the Company and shall not be paid by the Advisor:
(a) the cost of borrowed money;
(b) taxes on income and taxes and assessments on real property,
if any, and all other taxes applicable to the Company;
(c) legal, auditing, accounting, underwriting, brokerage,
listing, reporting, registration and other fees, and printing,
engraving and other expenses and taxes incurred in connection with the
issuance, distribution, transfer, trading, registration and stock
exchange listing of the Company's securities, including transfer
agent's , registrar's and indenture trustee's fees and charges;
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(d) expenses of organizing, restructuring, reorganizing or
terminating the Company, or of revising, amending, converting or
modifying the Company's organizational documents;
(e) fees and travel and other expenses paid to Trustees and
officers of the Company in their capacities as such (but not in their
capacities as officers or employees of the Advisor) and fees and travel
and other expenses paid to advisors, contractors, mortgage services,
consultants, and other agents and independent contractors employed by
or on behalf of the Company;
(f) Expenses directly connected with the acquisition,
disposition or ownership of real estate interests or other property
(including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair,
improvement and local management of property), other than expenses with
respect thereto of employees of the Advisor, to the extent that such
expenses are to be borne by the Advisor pursuant to Section 11 above;
(g) all insurance costs incurred in connection with the Company
(including officer and trustee liability insurance) or in connection
with any officer and trustee indemnity agreement to which the Company
is a party;
(h) expenses connected with payments of dividends or interest or
contributions in cash or any other form made or caused to be made by
the Trustees to holders of securities of the Company;
(i) all expenses connected with communications to holders of
securities of the Company and other bookkeeping and clerical work
necessary to maintaining relations with holders of securities,
including the cost of printing and mailing certificates for securities
and proxy solicitation materials and reports to holders of the
Company's securities;
(j) legal, accounting and auditing fees and expenses, other than
those described in subsection (c) above; and
(k) expenses relating to any office or office facilities
maintained by the Company separate from the office of the Advisor.
13. Annual Operating Expenses Limitation Requiring Refunds by the
Advisor. There shall be a limitation (the "Limitation") on Operating Expenses
(as defined below) of the Company for each fiscal year which shall be the lower
of the following:
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(a) the greater of (i) 2% of the Average Invested Capital of the
Company for such fiscal year; and (ii) 25% of the Net Income (as
defined below) of the Company for such fiscal year; or
(b) the lowest of any applicable operating expense limitations
that may be imposed by law or regulation in a state in which any
securities of the Company are or will be qualified for sale or by a
national securities exchange on which any securities of the Company are
or may be listed, as such limitations may be altered from time to time.
For purposes of this Advisory Agreement, "Operating Expenses" shall be
calculated on the basis of the Company's annual audited financial statements and
shall be deemed to mean the aggregate annual expenses regarded as ordinary
operating expenses in accordance with generally accepted accounting principles
(including the Fees), exclusive of the following:
(i) the expenses set forth in subsections (a) through
(d), inclusive, and (f) of Section 12 hereof
(ii) non-cash expenditures, including provisions for
depreciation, depletion, bad debt reserve and
amortization;
(iii) losses on the disposition of assets and provisions
for such losses;
(iv) options granted to the Advisor; and
(v) other extraordinary charges including, without
limitation, litigation costs.
For purposes of this Advisory Agreement, "Net Income" for any period
shall be calculated on the basis of the Company's audited financial statements
and shall be deemed to mean total revenues applicable to such period, less the
expenses applicable to such period, including additions to reserves for
depreciation or bad debts or other similar noncash reserves, determined in
accordance with generally accepted accounting principles.
On or before the 30th day after public availability of the Company's
annual audited financial statements for each fiscal year, the Advisor shall
refund (to the extent of the aggregate Fees it has received with respect to such
year) to the Company the amount, if any, by which the Operating Expenses
exceeded the Limitation; provided, however, that unless such action is
prohibited by laws or regulations, the Company may instead permit such refund to
be effected by a reduction in the amount of the Fees to be paid by the Company
during the fiscal years following the fiscal year with respect to which such
refund is to be made until such time as any such refund is fully paid, and
provided further that only so much of such excess need be refunded as is
conclusively determined by the Trustees, including a majority of the Independent
Trustees, to be unjustified.
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14. Limits of Advisor Responsibility. The Advisor assumes no
responsibility other than to render the services described herein in good faith
and shall not be responsible for any action of the Trustees in following or
declining to follow any advice or recommendation of the Advisor. The Advisor,
its shareholders, directors, officers, employees and Affiliates will not be
liable to the Company, its shareholders, or others, except by reason of acts
constituting bad faith, willful or wanton misconduct or gross negligence. The
Company shall reimburse, indemnify and hold harmless the Advisor, its
shareholders, directors, officers and employees and its Affiliates for and from
any and all expenses, losses, damages, liabilities, demands, charges and claims
of any nature whatsoever in respect of or arising from any acts or omissions of
the Advisor undertaken in good faith and in accordance with the standard set
forth above pursuant to the authority granted to it by this Advisory Agreement.
15. Other Activities of Advisor. Nothing herein shall prevent the
Advisor from engaging in other activities or businesses or from acting as
advisor to any other Person (including other real estate investment trusts) even
though such Person has investment policies and objectives similar to those of
the Company; provided, however, that the Advisor shall notify the Company in
writing in the event that it does so act as an advisor to another real estate
investment trust. The Advisor shall be free from any obligation to present to
the Company any particular investment opportunity which comes to the Advisor. In
addition, nothing herein shall prevent any stockholder or Affiliate of the
Advisor from engaging in any other business or from rendering services of any
kind to any other corporation, partnership or other entity (including
competitive business activities). Without limiting the foregoing provisions, the
Advisor agrees, upon the request of any Trustee of the Company, to disclose
certain investment information concerning the Advisor or certain of its
Affiliates, provided, however, that such disclosure shall be required only if it
does not constitute a breach of any fiduciary duty or obligation of Advisor.
Directors, officers, employees and agents of the Advisor or of its
Affiliates may serve as Trustees, officers, employees, agents, nominees or
signatories of the Company. When executing documents or otherwise acting in such
capacities for the Company, such persons shall use their respective titles in
the Company. Such persons shall receive no compensation from the Company for
their services to the Company in any such capacities.
16. Term, Termination. This Advisory Agreement shall continue in force
and effect until December 31, 1998, and is renewable annually thereafter by the
Company, if a majority of the Independent Trustees determine that the Advisor's
performance has been satisfactory.
Notwithstanding any other provision of this Advisory Agreement to the
contrary, this Advisory Agreement, or any extension thereof, may be terminated
by either party thereto upon sixty (60) days' written notice to the other party,
pursuant to a majority vote of the Independent Trustees; or, in the case of a
termination by the Advisor, by a majority vote of the directors of the Advisor.
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Paragraph 19 hereof shall govern the rights, liabilities and
obligations of the parties upon termination of this Advisory Agreement; and,
except as provided in paragraph 20, such termination shall be without further
liability of either party to the other than for breach or violation of this
Agreement prior to termination.
17. Assignment. The Company may terminate this Advisory Agreement at
any time in the event of its assignment by the Advisor except an assignment to a
corporation, association, trust, or other successor organization which may take
over the property and carry on the affairs of the Advisor; provided that,
following such assignment, the persons who controlled the operations of the
Advisor immediately prior to the assignment shall control the operation of the
successor organization, including the performance of its duties under this
Advisory Agreement, and such successor organization shall be bound by the same
restrictions by which the Advisor was bound prior to such assignment. Such
assignment or any other assignment of this Agreement by the Advisor shall bind
the assignee hereunder in the same manner as the Advisor is bound hereunder.
This Advisory Agreement shall not be assignable by the Company without the prior
written consent of the Advisor, except in the case of any assignment by the
Company to a corporation or other organization which is the successor to the
Company, in which case such successor shall be bound hereby and by the terms of
said assignment in the same manner and to the same extent as the Company is
bound hereby.
18. Default, Bankruptcy, Etc. of the Advisor. At the sole option of the
Company, this Advisory Agreement may be terminated immediately upon written
notice of such termination from the Trustees to the Advisor if any of the
following events shall have occurred:
(a) the Advisor shall have violated any provision of this
Advisory Agreement and, after written notice from the Trustees of such
violation, shall have failed to cure such default within thirty (30)
days;
(b) a petition shall have been filed against the Advisor for an
involuntary proceeding under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, and such petition shall
not have been dismissed within ninety (90) days of filing; or a court
having jurisdiction shall have appointed a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Advisor for any substantial portion of its property, or ordered the
winding up or liquidation of its affairs, and such appointment or order
shall not have been rescinded or vacated within ninety (90) days of
such appointment or order; or
(c) the Advisor shall have commenced a voluntary proceeding
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall have made any general assignment for the
benefit of creditors, or shall have failed generally to pay its debts
as they became due.
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The Advisor agrees that, if any of the events specified in Paragraphs
(b) or (c) of this Section 18 shall occur, it will give written notice thereof
to the Trustees within seven (7) days following the occurrence of such event.
19. Action Upon Termination. From and after the effective date of any
termination of this Agreement pursuant to Sections 16, 17 and 18 hereof, the
Advisor shall be entitled to no compensation for services rendered hereunder for
the then-current term of this Agreement, but shall be paid, on a pro rata basis,
all compensation due for services performed prior to such termination (reduced
by the amount, if any, of the Fees to be refunded by the Advisor pursuant to
Section 13 hereof, which section shall apply pro rata to the applicable portion
of the fiscal year in which termination occurs in the event of a termination
occurring at other than the end of the Company's fiscal year). Upon such
termination, the Advisor immediately shall:
(a) pay over to the Company all monies collected and held for
the account of the Company by it pursuant to this Advisory Agreement,
after deducting therefrom any accrued Fees (reduced by amounts owed by
the Advisor to the Company pursuant to the last paragraph of Section 13
hereof) and reimbursements for its expenses to which it is then
entitled;
(b) deliver to the Trustee a full and complete accounting,
including a statement showing all sums collected by it and a statement
of all sums held by it for the period commencing with the date
following the date of its last accounting to the Trustees; and
(c) deliver to the Trustees all property and documents of the
Company then in its custody or possession.
The amount of Fees paid to the Advisor upon termination shall be
subject to adjustment pursuant to the following mechanism. On or before the 30th
day after public availability of the Company's annual audited financial
statements for the fiscal year in which termination occurs, the Company shall
deliver to the Advisor a Certificate reasonably acceptable to the Advisor and
certified by an authorized officer of the Company setting forth (i) the Average
Invested Real Estate Assets and Cash Available for Distribution to Shareholders
for the Company's fiscal year ended upon the immediately preceding December 31,
and (ii) the Company's computation of the Fees payable upon the date of
termination (reduced by the aggregate amount of any excess expenses to be
refunded pursuant to Section 13 hereof, which Section shall apply to the
applicable portion of the fiscal year in which termination occurs in the event
of a termination occurring at other than the end of the Company's fiscal year).
If the annual Fees owed upon termination as shown in such Certificate
exceed the Fees paid by the Company upon termination, the Company shall include
its check for such deficit and deliver the same to the Advisor with such
Certificate.
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If the annual Fees owed upon termination as shown in such Certificate
are less than the Fees paid by the Company upon termination, the Advisor shall
remit to the Company its check in an amount equal to such difference.
20. Trustee Action. Wherever action on the part of the Trustees is
contemplated by this Agreement, action by a majority of the Trustees, including
a majority of the Independent Trustees, shall constitute the action provided for
herein.
21. TRUSTEES AND SHAREHOLDERS NOT LIABLE. THE DECLARATION OF TRUST OF
THE COMPANY, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS, IS DULY FILED IN THE
OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND
PROVIDES THAT THE NAME HEALTH AND RETIREMENT PROPERTIES TRUST REFERS TO THE
TRUSTEES COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY. NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
22. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is accepted by the party to
whom it is given, and shall be given by being delivered at the following
addresses to the parties hereto:
If to the Company:
Health and Retirement Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
If to the Advisor:
REIT Management & Research, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Such notice shall be effective upon its receipt by the party to whom it
is directed. Either party hereto may at any time give notice to the other party
in writing of a change of its address for purposes of this paragraph 22.
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23. Amendments. The Advisory Agreement shall not be amended, changed,
modified, terminated, or discharged in whole or in part except by an instrument
in writing signed by each of the parties hereto, or by their respective
successors or assigns, or otherwise as provided herein.
24. Successors and Assigns. This Advisory Agreement shall be binding
upon any successors or permitted assigns of the parties hereto as provided
herein.
25. Governing Law. The provisions of this Advisory Agreement shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
26. Captions. The captions included herein have been inserted for ease
of reference only and shall not be construed to affect the meaning, construction
or effect of this Advisory Agreement.
27. Entire Agreement. This Advisory Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes and cancels any pre-existing agreements with respect to such subject
matter.
28. Attorneys' Fees. If any legal action is brought for the enforcement
of this Advisory Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Advisory
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that action in
addition to any other relief to which it or they may be entitled.
IN WITNESS WHEREOF, the parties hereto have caused this Advisory
Agreement to be executed by their duly authorized officers, under seal, as of
the day and year first above written.
ATTEST: HEALTH AND RETIREMENT PROPERTIES
TRUST
/s/__________________________ By: /s/ Xxxx Xxxxx
Its:
ATTEST: REIT MANAGEMENT & RESEARCH, INC.
/s/__________________________ By: /s/ Xxxx X. Xxxxxx
Its:
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