Exhibit 10.5
SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
THIS SECOND AMENDED AND RESTATED ADVISORY AGREEMENT, dated as of
September 30, 2005, is between CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL
INCORPORATED, a Maryland corporation (the "COMPANY"), and XXXXX ASSET MANAGEMENT
CORP., a Delaware corporation and wholly-owned subsidiary of W. P. Xxxxx & Co.
LLC (the "ADVISOR").
W I T N E S S E T H:
WHEREAS, the Company intends to qualify as a REIT (as defined below),
and to invest its funds in investments permitted by the terms of any prospectus
pursuant to which it raised equity capital and Sections 856 through 860 of the
Code (as defined below);
WHEREAS, the Company desires to avail itself of the experience, sources
of information, advice and assistance of, and certain facilities available to,
the Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of, and subject to the supervision of the Board
of Directors of the Company, all as provided herein; and
WHEREAS, the Advisor is willing to render such services, subject to the
supervision of the Board of Directors, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
definitions hereinafter indicated:
Acquisition Expense. To the extent not paid or to be paid by the seller
or lessee in the case of a Property or the borrower in the case of a Loan, those
expenses, including but not limited to travel and communications expenses, the
cost of appraisals, title insurance, nonrefundable option payments on Property
not acquired, legal fees and expenses, accounting fees and expenses and
miscellaneous expenses, related to selection, acquisition and origination of
Properties and Loans, whether or not acquired. Acquisition Expenses shall not
include Acquisition Fees.
Acquisition Expense Allowance. An amount equal to one half percent of
the Contract Purchase Price of a Property or Loan, to be paid to the Advisor in
connection with Properties and Loans acquired using proceeds of the Part I
Offering, to provide for the payment by the Advisor of Acquisition Expenses and
such other expenses as provided in Section 10(b) hereof.
Acquisition Fee. Any fee or commission (including any interest thereon)
paid by the Company to the Advisor or, with respect to Section 9(d), by the
Company to any party, in connection with the making or investing in Loans and
the purchase, development or construction of Properties by the Company. A
Development Fee or a Construction Fee paid to a Person not affiliated with the
Sponsor in connection with the actual development or construction of a project
after acquisition of the Property by the Company shall not be deemed an
Acquisition Fee. Acquisition Fees include, but are not limited to, any real
estate commission, selection fee, development fee (other than as described
above) or any fee of a similar nature, however designated. Acquisition Fees
include Subordinated Acquisition Fees unless the context otherwise requires.
Acquisition Fees shall not include Acquisition Expenses or the Acquisition
Expense Allowance.
Adjusted Invested Assets. The average during any period of the
aggregate historical cost, or to the extent available for a particular asset,
the most recent Appraised Value, of the Investment Assets of the Company, before
accumulated reserves for depreciation or bad debt allowances or other similar
non-cash reserves, computed (unless otherwise specified) by taking the average
of such values at the end of each month during such period.
Adjusted Investor Capital. As of any date, the Initial Investor Capital
reduced by any Redemptions, other than Redemptions intended to qualify as a
liquidity event for purposes of this Agreement, and by any other Distributions
on or prior to such date determined by the Board to be from Cash from Sales and
Financings.
Adjusted Net Income. For any period, the total revenues recognized in
such period, less the total expenses recognized in such period, excluding
additions to reserves for depreciation and amortization, bad debts or other
similar non-cash reserves; provided, however, if the Advisor receives a
Subordinated Incentive Fee, Adjusted Net Income for purposes of calculating
total allowable Operating Expenses shall exclude any gain, losses or writedowns
from the sale of the Company's assets that gave rise to such Subordinated
Incentive Fee.
Advisor. Xxxxx Asset Management Corp, a corporation organized under the
laws of the State of Delaware and wholly-owned by W. P. Xxxxx & Co. LLC.
Affiliate. An Affiliate of another Person shall include any of the
following: (i) any Person directly or indirectly owning, controlling, or
holding, with power to vote ten percent or more of the outstanding voting
securities of such other Person; (ii) any Person ten percent or more of whose
outstanding voting securities are directly or indirectly owned, controlled, or
held, with power to vote, by such other Person; (iii) any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person; (iv) any executive officer, director, trustee or general partner of such
other Person; or (v) any legal entity for which such Person acts as an executive
officer, director, trustee or general partner.
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Agreement. This Advisory Agreement.
Appraised Value. Value according to an appraisal made by an Independent
Appraiser, which may take into consideration any factor deemed appropriate by
such Independent Appraiser, including, but not limited to, the terms and
conditions of any lease of the relevant property, the quality of any lessee's
credit and the conditions of the credit markets. The Appraised Value may be
greater than the construction cost or the replacement cost of the property. For
purposes of the definition of Adjusted Invested Assets, Appraised Value shall
not include the initial appraisal of any property in connection with the
acquisition of that property.
Articles of Incorporation. Articles of Incorporation of the Company
under the General Corporation Law of Maryland, as amended from time to time,
pursuant to which the Company is organized.
Asset Management Fee. The Asset Management Fee as defined in Section
9(a) hereof.
Average Invested Assets. The average during any period of the aggregate
book value of the assets of the Company invested, directly or indirectly, in
Properties and in Loans, before reserves for depreciation or bad debts or other
similar non-cash reserves computed by taking the average of such daily values at
the end of each month during such period.
Board or Board of Directors. The Board of Directors of the Company.
Bylaws. The bylaws of the Company.
Cash from Financings. Net cash proceeds realized by the Company from
the financing of Investment Assets or the refinancing of any Company
indebtedness.
Cash from Sales. Net cash proceeds realized by the Company from the
sale, exchange or other disposition of any of its assets after deduction of all
expenses incurred in connection therewith. Cash from Sales shall not include
Cash from Financings.
Cash from Sales and Financings. The total sum of Cash from Sales and
Cash from Financings.
Cause. With respect to the termination of this Agreement, fraud,
criminal conduct, willful misconduct or willful or negligent breach of fiduciary
duty by the Advisor that, in each case, is determined by a majority of the
Independent Directors to be materially adverse to the Company.
Change of Control. A change of control of the Company of a nature that
would be required to be reported in response to the disclosure requirements of
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Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), as enacted and in force on the date
hereof, whether or not the Company is then subject to such reporting
requirements; provided, however, that, without limitation, a Change of Control
shall be deemed to have occurred if: (i) any "person" (within the meaning of
Section 13(d) of the Exchange Act, as enacted and in force on the date hereof)
is or becomes the "beneficial owner" (as that term is defined in Rule 13d-3, as
enacted and in force on the date hereof, under the Exchange Act) of securities
of the Company representing 8.5% or more of the combined voting power of the
Company's securities then outstanding; (ii) there occurs a merger, consolidation
or other reorganization of the Company which is not approved by the Board; (iii)
there occurs a sale, exchange, transfer or other disposition of substantially
all of the assets of the Company to another entity, which disposition is not
approved by the Board; or (iv) there occurs a contested proxy solicitation of
the Shareholders of the Company that results in the contesting party electing
candidates to a majority of the Board's positions next up for election.
Code. Internal Revenue Code of 1986, as amended.
Company. Corporate Property Associates 16 - Global Incorporated, a
corporation organized under the laws of the State of Maryland.
Competitive Real Estate Commission. The real estate or brokerage
commission paid for the purchase or sale of a property that is reasonable,
customary and competitive in light of the size, type and location of the
property.
Construction Fee. A fee or other remuneration for acting as general
contractor and/or construction manager to construct improvements, supervise and
coordinate projects or to provide major repairs or rehabilitation on a Property.
Contract Purchase Price. The amount actually paid for, or allocated to,
the purchase, development, construction or improvement of a Property or acquired
Loan or, in the case of an originated Loan, the principal amount of such Loan,
exclusive, in each case, of Acquisition Fees, Acquisition Expenses and the
Acquisition Expense Allowance.
Contract Sales Price. The total consideration received by the Company
for the sale of Properties and Loans.
Cumulative Return. For the period for which the calculation is being
made, the percentage resulting from dividing (A) the total Distributions for
such period (not including Distributions out of Cash from Sales and Financings),
by (B) the product of (i) the average Adjusted Investor Capital for such period
(calculated on a daily basis), and (ii) the number of years (including fractions
thereof) elapsed during such period. Notwithstanding the foregoing, neither the
Shares received by the Advisor or its Affiliates for any consideration other
than
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cash, nor the Distributions in respect of such Shares, shall be included in the
foregoing calculation.
Development Fee. A fee for the packaging of a Property including
negotiating and approving plans, and undertaking to assist in obtaining zoning
and necessary variances and necessary financing for the specific Property,
either initially or at a later date.
Directors. The persons holding such office, as of any particular time,
under the Articles of Incorporation, whether they be the directors named therein
or additional or successor directors.
Distributions. Distributions declared by the Board.
Good Reason. With respect to the termination of this Agreement, (i) any
failure to obtain a satisfactory agreement from any successor to the Company to
assume and agree to perform the Company's obligations under this Agreement; or
(ii) any material breach of this Agreement of any nature whatsoever by the
Company; provided that such breach (a) is of a material term or condition of
this Agreement and (b) the Company has not cured such breach within 30 days of
written notice thereof or, in the case of any breach that cannot be cured within
30 days by reasonable effort, has not taken all necessary action within a
reasonable time period to cure such breach.
Gross Offering Proceeds. The aggregate purchase price of Shares sold in
any Offering.
Independent Appraiser. A qualified appraiser of real estate as
determined by the Board, who is not affiliated, directly or indirectly, with the
Company, the Advisor or their respective Affiliates. Membership in a nationally
recognized appraisal society such as the American Institute of Real Estate
Appraisers or the Society of Real Estate Appraisers shall be conclusive evidence
of such qualification.
Independent Director. A Director of the Company who meets the criteria
for an Independent Director specified in the Bylaws.
Individual. Any natural person and those organizations treated as
natural persons in Section 542(a) of the Code.
Initial Closing Date. The first date on which Shares were issued
pursuant to an Offering.
Initial Investor Capital. The total amount of capital invested from
time to time by Shareholders (computed at the Original Issue Price per Share),
excluding any Shares received by the Advisor or its Affiliates for any
consideration other than cash.
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Investment Asset. Any Property, Loan or Other Permitted Investment
Asset.
Loan Refinancing Fee. The Loan Refinancing Fee as defined in Section
9(e) hereof.
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by the Company as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, including but not limited to first or subordinate
mortgage loans, construction loans, development loans, loans secured by capital
stock or any other assets or form of equity interest and any other type of loan
or financial arrangement, such as providing or arranging for letters of credit,
providing guarantees of obligations to third parties, or providing commitments
for loans. The term "Loans" shall not include leases which are not recognized as
leases for Federal income tax reporting purposes.
Market Value. The value calculated by multiplying the total number of
outstanding Shares by the average closing price of the Shares over the 30
trading days beginning 180 calendar days after the Shares are first listed on a
national security exchange or included for quotation on Nasdaq, as the case may
be.
Nasdaq. The national automated quotation system operated by the
National Association of Securities Dealers, Inc.
Offering. The offering of Shares pursuant to a Prospectus.
Operating Expenses. All operating, general and administrative expenses
paid or incurred by the Company, as determined under generally accepted
accounting principles, except the following: (i) interest and discounts and
other cost of borrowed money; (ii) taxes (including state and Federal income
tax, property taxes and assessments, franchise taxes and taxes of any other
nature); (iii) expenses of raising capital, including Organization and Offering
Expenses, printing, engraving, and other expenses, and taxes incurred in
connection with the issuance and distribution of the Company's Shares and
Securities; (iv) Acquisition Expenses, real estate commissions on resale of
property and other expenses connected with the acquisition, disposition,
origination, ownership and operation of real estate interests, mortgage loans,
or other property, including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair and improvement
of property; (v) Acquisition Fees or Subordinated Disposition Fees payable to
the Advisor or any other party; (vi) non-cash items, such as depreciation,
amortization, depletion, and additions to reserves for depreciation,
amortization, depletion, losses and bad debts; (vii) Termination Fees; and
(viii) Subordinated Incentive Fees paid in compliance with Section 9(i).
Notwithstanding anything herein to the contrary, Operating Expenses shall
include the Asset Management Fee and the Loan Refinancing Fee.
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Organization and Offering Expenses. Those expenses payable by the
Company in connection with the formation, qualification and registration of the
Company and in marketing and distributing Shares, including, but not limited to:
(i) the preparation, printing, filing and delivery of any registration statement
or Prospectus and the preparing and printing of contractual agreements between
the Company and the Sales Agent and the Selected Dealers (including copies
thereof); (ii) the preparing and printing of the Articles of Incorporation and
Bylaws, solicitation material and related documents and the filing and/or
recording of such documents necessary to comply with the laws of the State of
Maryland for the formation of a corporation and thereafter for the continued
good standing of a corporation; (iii) the qualification or registration of the
Shares under state securities or "Blue Sky" laws; (iv) any escrow arrangements,
including any compensation to an escrow agent; (v) the filing fees payable to
the SEC and to the National Association of Securities Dealers, Inc.; (vi)
reimbursement for the reasonable and identifiable out-of-pocket expenses of the
Sales Agent and the Selected Dealers, including the cost of their counsel; (vii)
the fees of the Company's counsel; (viii) all advertising expenses incurred in
connection with the Offering, including the cost of all sales literature and the
costs related to investor and broker-dealer sales and information meetings and
marketing incentive programs; and (ix) selling commissions, marketing fees,
incentive fees, due diligence fees and wholesaling fees and expenses incurred in
connection with the sale of the Shares.
Original Issue Price. For any share issued in an Offering, $10 per
Share, regardless of whether reduced selling commissions were paid in connection
with the purchase of such Shares from the Company.
Other Permitted Investment Asset. An asset, other than cash, cash
equivalents, short term bonds, auction rate securities and similar short term
investments, acquired by the Company for investment purposes that is not a Loan
or a Property and is consistent with the investment objectives and policies of
the Company.
Other Permitted Investment Assets Fee. The Other Permitted Investment
Assets Fee as defined in Section 9(h).
Part I Offering. The Offering of 110,000,000 Shares of the Company,
declared effective by the Securities and Exchange Commission pursuant to the
Company's Registration Statement on Form S-11 (File No. 333-106838).
Part II Offering. The Offering of 55,000,000 Shares of the Company,
declared effective by the Securities and Exchange Commission pursuant to the
Company's Registration Statement on Form S-11 (File No. 333-119265).
Person. An Individual, corporation, partnership, joint venture,
association, company, trust, bank, or other entity, or government or any agency
or political subdivision of a government.
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Preferred Return. A Cumulative Return of six percent computed from the
Initial Closing Date through the date as of which such amount is being
calculated.
Property or Properties. The Company's partial or entire interest in
real property (including leasehold interests) and personal or mixed property
connected therewith.
Property Management Fee. A fee for property management services
rendered by the Advisor or its Affiliates in connection with Properties acquired
directly or through foreclosure.
Prospectus. Any prospectus pursuant to which the Company offers Shares
in a public offering, as the same may at any time and from time to time be
amended or supplemented after the effective date of the registration statement
in which it is included.
Redemptions. An amount determined by multiplying the number of Shares
redeemed by the Original Issue Price.
REIT. A real estate investment trust, as defined in Sections 856-860 of
the Code.
Sales Agent. Xxxxx Financial Corporation.
Securities. Any stock, shares (other than currently outstanding Shares
and subsequently issued Shares), voting trust certificates, bonds, debentures,
notes or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise or in general any instruments commonly known as
"securities" or any certificate of interest, shares or participation in
temporary or interim certificates for receipts (or, guarantees of, or warrants,
options or rights to subscribe to, purchase or acquire any of the foregoing),
which subsequently may be issued by the Company.
Selected Dealers. Broker-dealers who are members of the National
Association of Securities Dealers, Inc. and who have executed an agreement with
the Sales Agent in which the Selected Dealers agree to participate with the
Sales Agent in the Offering.
Shareholders. Those Persons who, at the time any calculation hereunder
is to be made, are shown as holders of record of Shares on the books and records
of the Company.
Shares. All of the shares of common stock of the Company, $.001 par
value, and any other shares of common stock of the Company.
Sponsor. W.P. Xxxxx & Co. LLC and any other Person directly or
indirectly instrumental in organizing, wholly or in part, the Company or any
person who will control, manage or participate in the management of the
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Company, and any Affiliate of any such person. Sponsor does not include a person
whose only relationship to the Company is that of an independent property
manager and whose only compensation is as such. Sponsor also does not include
wholly independent third parties such as attorneys, accountants and underwriters
whose only compensation is for professional services.
Subordinated Acquisition Fee. The Subordinated Acquisition Fee as
defined in Section 9(c).
Subordinated Disposition Fee. The Subordinated Disposition Fee as
defined in Section 9(g) hereof.
Subordinated Incentive Fee. The Subordinated Incentive Fee as defined
in Section 9(i) hereof.
Termination Date. The effective date of any termination of this
Agreement.
Termination Fee. An amount equal to 15% of the amount, if any, by which
(1) the fair value of the Investment Assets on the Termination Date, less the
amount of all indebtedness secured by such Investment Assets, exceeds (2) the
total of the Adjusted Investor Capital plus an amount equal to the Preferred
Return through the Termination Date reduced by the total Distributions paid by
the Company from its inception through the Termination Date (other than
Distributions made from Cash from Sales and Financings that are counted in
determining Adjusted Investor Capital). For purposes of calculating this Fee (i)
the fair value of any Property shall be its Appraised Value, and (ii) any
payments in respect of redeemed Shares (other than in respect of Redemptions
intended to qualify as a liquidity event for purposes of this Agreement). Shares
received by the Advisor or its Affiliates for any consideration other than cash
and the Distributions in respect of such Shares shall be excluded.
Total Property Cost. With regard to any Property or Loan, an amount
equal to the sum of the Contract Purchase Price of such Property or Loan plus
the Acquisition Fees paid in connection with such Property or Loan.
Two Percent/25% Guidelines. The requirement that, in the 12-month
period immediately preceding the end of any fiscal quarter, the Operating
Expenses not exceed the greater of two percent of the Company's Average Invested
Assets during such 12-month period or 25% of the Company's Adjusted Net Income
over the same 12-month period.
2. APPOINTMENT. The Company hereby appoints the Advisor to serve as its
advisor on the terms and conditions set forth in this Agreement, and the Advisor
hereby accepts such appointment.
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3. DUTIES OF THE ADVISOR. The Advisor undertakes to use its best
efforts to present to the Company potential investment opportunities and to
provide a continuing and suitable investment program consistent with the
investment objectives and policies of the Company as determined and adopted from
time to time by the Board. In performance of this undertaking, subject to the
supervision of the Board and consistent with the provisions of the Articles of
Incorporation and Bylaws of the Company and any Prospectus pursuant to which
Shares are offered, the Advisor shall, either directly or by engaging an
Affiliate:
(a) serve as the Company's investment and financial advisor and
provide research and economic and statistical data in connection with
the Company's assets and investment policies;
(b) provide the daily management of the Company and perform and
supervise the various administrative functions reasonably necessary for
the management of the Company;
(c) investigate, select, and, on behalf of the Company, engage and
conduct business with such Persons as the Advisor deems necessary to
the proper performance of its obligations hereunder, including but not
limited to consultants, accountants, correspondents, lenders, technical
advisors, attorneys, brokers, underwriters, corporate fiduciaries,
escrow agents, depositaries, custodians, agents for collection,
insurers, insurance agents, banks, builders, developers, property
owners, mortgagors, and any and all agents for any of the foregoing,
including Affiliates of the Advisor, and Persons acting in any other
capacity deemed by the Advisor necessary or desirable for the
performance of any of the foregoing services, including but not limited
to entering into contracts in the name of the Company with any of the
foregoing;
(d) consult with Directors of the Company and assist the Board in
the formulation and implementation of the Company's financial policies
and, as necessary, furnish the Board with advice and recommendations
with respect to the making of investments consistent with the
investment objectives and policies of the Company and in connection
with any borrowings proposed to be undertaken by the Company;
(e) subject to the provisions of Sections 3(g) and 4 hereof: (i)
locate, analyze and select potential investments in Investment Assets;
(ii) structure and negotiate the terms and conditions of transactions
pursuant to which investments in Investment Assets will be made,
purchased or acquired by the Company; (iii) make investments in
Investment Assets on behalf of the Company in compliance with the
investment objectives and policies of the Company; (iv) arrange for
financing and refinancing of, make other changes in the asset or
capital structure of, dispose of, reinvest the proceeds from the sale
of, or otherwise deal with the investments in, Investment Assets; and
(v) enter into leases and service contracts for
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Properties and, to the extent necessary, perform all other operational
functions for the maintenance and administration of such Properties;
(f) provide the Board with periodic reports regarding prospective
investments in Investment Assets;
(g) obtain the prior approval of the Board (including a majority
of the Independent Directors) for any and all investments in Property
which do not meet all of the requirements set forth in Section 4(b)
hereof;
(h) negotiate on behalf of the Company with banks or lenders for
loans to be made to the Company, and negotiate on behalf of the Company
with investment banking firms and broker-dealers or negotiate private
sales of Shares and Securities or obtain loans for the Company, but in
no event in such a way so that the Advisor shall be acting as
broker-dealer or underwriter; and provided, further, that any fees and
costs payable to third parties incurred by the Advisor in connection
with the foregoing shall be the responsibility of the Company;
(i) obtain reports (which may be prepared by the Advisor or its
Affiliates), where appropriate, concerning the value of investments or
contemplated investments of the Company in Investment Assets;
(j) obtain for, or provide to, the Company such services as may be
required in acquiring, managing and disposing of Investment Assets,
including, but not limited to: (i) the negotiation, making and
servicing of Loans; (ii) the disbursement and collection of Company
monies; (iii) the payment of debts of and fulfillment of the
obligations of the Company; and (iv) the handling, prosecuting and
settling of any claims of or against the Company, including, but not
limited to, foreclosing and otherwise enforcing mortgages and other
liens securing the Loans;
(k) from time to time, or at any time reasonably requested by the
Board, make reports to the Board of its performance of services to the
Company under this Agreement;
(l) communicate on behalf of the Company with Shareholders as
required to satisfy the reporting and other requirements of any
governmental bodies or agencies to Shareholders and third parties and
otherwise as requested by the Company;
(m) provide or arrange for administrative services and items,
legal and other services, office space, office furnishings, personnel
and other overhead items necessary and incidental to the Company's
business and operations;
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(n) provide the Company with such accounting data and any other
information requested by the Company concerning the investment
activities of the Company as shall be required to prepare and to file
all periodic financial reports and returns required to be filed with
the Securities and Exchange Commission and any other regulatory agency,
including annual financial statements;
(o) maintain the books and records of the Company;
(p) supervise the performance of such ministerial and
administrative functions as may be necessary in connection with the
daily operations of the Properties and Loans;
(q) provide the Company with all necessary cash management
services;
(r) do all things necessary to assure its ability to render the
services described in this Agreement;
(s) perform 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 Advisor shall deem advisable under the particular
circumstances;
(t) arrange to obtain on behalf of the Company as requested by the
Board, and deliver to or maintain on behalf of the Company copies of,
all appraisals obtained in connection with investments in Properties
and Loans; and
(u) if a transaction, proposed transaction or other matter
requires approval by the Board or by the Independent Directors, deliver
to the Board or the Independent Directors, as the case may be, all
documentation reasonably requested by them to properly evaluate such
transaction, proposed transaction or other matter.
4. AUTHORITY OF ADVISOR.
(a) Pursuant to the terms of this Agreement (including the
restrictions included in this Section 4 and in Section 7 hereof), and
subject to the continuing and exclusive authority of the Board over the
management of the Company, the Board hereby delegates to the Advisor
the authority to: (1) locate, analyze and select investment
opportunities; (2) structure the terms and conditions of transactions
pursuant to which investments will be made or acquired for the Company;
(3) acquire Property, make or acquire Loans and make or acquire Other
Permitted Investment Assets in compliance with the investment
objectives and policies of the Company; (4) arrange for financing or
refinancing, or make
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changes in the asset or capital structure of, and dispose of or
otherwise deal with, Investment Assets; (5) enter into leases and
service contracts for Properties, and perform other property level
operations; (6) oversee non-affiliated property managers and other
non-affiliated Persons who perform services for the Company; and (7)
undertake accounting and other record-keeping functions at the
Investment Asset level.
(b) Notwithstanding the foregoing, any investment in Property,
including any acquisition of any Property by the Company (as well as
any financing acquired by the Company in connection with such
acquisition), will require the prior approval of the Board unless,
prior to completion of any such transaction, the Advisor provides the
Company with:
(i) an appraisal for the Property indicating that the Total
Property Cost of the Property does not exceed the Appraised Value
of the Property; and
(ii) a representation from the Advisor that the Property, in
conjunction with the Company's other investments and proposed
investments, at the time the Company is committed to purchase the
Property, is reasonably expected to fulfill the Company's
investment objectives and policies as established by the Board and
then in effect.
(c) Notwithstanding the foregoing, any investment in a Loan,
including any acquisition of any Loan by the Company, shall comply with
Article VIII (Restrictions on Investments and Activities) and related
sections of the Bylaws.
(d) Notwithstanding the foregoing, the prior approval of the
Board, including a majority of the Independent Directors and a majority
of the Directors not interested in the transaction, will be required
for: (i) investments in Properties made through co-investment or joint
venture arrangements with the Sponsor, the Advisor or any of their
Affiliates; (ii) investments in Investment Assets which are not
contemplated by the terms of a Prospectus; (iii) transactions that
present issues which involve conflicts of interest for the Advisor or
an Affiliate (other than conflicts involving the payment of fees or the
reimbursement of expenses); (iv) the lease of assets to the Sponsor,
any Director, the Advisor or any Affiliate of the Advisor; (v) any
purchase or sale of an Investment Asset from or to the Advisor or an
Affiliate; and (vi) the retention of any Affiliate of the Advisor to
provide services to the Company not expressly contemplated by this
Agreement and the terms of such services by such Affiliate. In
addition, the Advisor shall comply with any further approval
requirements set forth in the Bylaws.
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(e) The Board may, at any time upon the giving of notice to the
Advisor, modify or revoke the authority set forth in this Section 4. If
and to the extent the Board so modifies or revokes the authority
contained herein, the Advisor shall henceforth comply with such
modification or revocation, provided however, that such modification or
revocation shall be effective upon receipt by the Advisor and shall not
be applicable to investment transactions to which the Advisor has
committed the Company prior to the date of receipt by the Advisor of
such notification.
5. BANK ACCOUNTS. The Advisor may establish and maintain one or more
bank accounts in its own name for the account of the Company or in the name of
the Company and may collect and deposit into any such account or accounts, and
disburse from any such account or accounts, any money on behalf of the Company,
provided that no funds shall be commingled with the funds of the Advisor; and
the Advisor shall from time to time render appropriate accountings of such
collections and payments to the Board and to the auditors of the Company.
6. RECORDS; ACCESS. The Advisor shall maintain appropriate records of
all its activities hereunder and make such records available for inspection by
the Board and by counsel, auditors and authorized agents of the Company, at any
time or from time to time during normal business hours. The Advisor shall at all
reasonable times have access to the books and records of the Company.
7. LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from taking any action
which, in its sole judgment made in good faith, would adversely affect the
status of the Company as a REIT, subject the Company to regulation under the
Investment Company Act of 1940, would violate any law, rule, regulation or
statement of policy of any governmental body or agency having jurisdiction over
the Company, its Shares or its Securities, or otherwise not be permitted by the
Articles of Incorporation or Bylaws, except if such action shall be ordered by
the Board, in which case the Advisor shall notify promptly the Board of the
Advisor's judgment of the potential impact of such action and shall refrain from
taking such action until it receives further clarification or instructions from
the Board. In such event the Advisor shall have no liability for acting in
accordance with the specific instructions of the Board so given. Notwithstanding
the foregoing, the Advisor, its shareholders, directors, officers and employees,
and partners, shareholders, directors and officers of the Advisor's shareholders
and Affiliates of any of them, shall not be liable to the Company, or to the
Directors or Shareholders for any act or omission by the Advisor, its
shareholders, directors, officers and employees, or partners, shareholders,
directors or officers of the Advisor's shareholders except as provided in
Sections 20 and 22 hereof.
8. RELATIONSHIP WITH DIRECTORS. There shall be no limitation on any
shareholder, director, officer, employee or Affiliate of the Advisor serving
14
as a Director or an officer of the Company, except that no employee of the
Advisor or its Affiliates who also is a Director or officer of the Company shall
receive any compensation from the Company for serving as a Director or officer
other than for reasonable reimbursement for travel and related expenses incurred
in attending meetings of the Board; for the avoidance of doubt, the limitations
of this Section 8 shall not apply to any compensation paid by the Advisor or any
Affiliate for which the Company reimbursed the Advisor or Affiliate in
accordance with Section 10 hereof.
9. FEES.
(a) ASSET MANAGEMENT FEE. The Company shall pay to the Advisor as
compensation for the advisory services rendered to the Company
hereunder an amount equal to one percent per annum of the Adjusted
Invested Assets of the Company (the "ASSET MANAGEMENT Fee") calculated
as set forth below. The Asset Management Fee will be calculated
monthly, beginning with the month in which the Company first makes an
investment in Investment Assets, on the basis of one-twelfth of one
percent of the Adjusted Invested Assets for that month, computed as a
daily average. One-half of the Asset Management Fee calculated with
respect to each month shall be payable on the first business day
following such month. One-half of such Asset Management Fee shall be
subordinated to the extent described below and shall be payable
quarterly. The subordinated Asset Management Fee for any quarter shall
be payable only if the Preferred Return has been met through the end of
the applicable quarter. Any portion of the subordinated Asset
Management Fee not paid due to the Company's failure to meet the
Preferred Return shall be paid by the Company, to the extent it is not
restricted by the 2%/25% Guidelines as described below, at the end of
the next fiscal quarter through which the Company has met the Preferred
Return. If at the end of any fiscal quarter, the Company's Operating
Expenses exceed the 2%/25% Guidelines over the immediately preceding 12
months, payment of the subordinated Asset Management Fee will be
withheld consistent with Section 13. For purposes of calculating the
value per share of restricted stock given for payment of the Asset
Management Fee, the price per share shall be: (i) the net asset value
per share as determined by the most recent appraisal performed by an
independent third party at the time such Asset Management Fee was
earned or, if an appraisal has not yet been made and accepted by the
Company, (ii) $10 per share. Any part of the Asset Management Fee that
has been subordinated pursuant to this subsection (a) shall not be
deemed earned until such time as payable hereunder.
(b) ACQUISITION FEE. The Advisor may receive as compensation for
services rendered in connection with the investigation, selection,
acquisition or origination (by purchase, investment or exchange) of any
Property or Loan, an Acquisition Fee payable by the Company. The total
such Acquisition Fees (not including Subordinated Acquisition Fees
15
and any interest thereon) payable to the Advisor may not exceed
two-and-one-half percent of the aggregate Total Property Cost of all
Properties and Loans acquired or originated by the Company, measured at
such time as the Company shall have completed all Offerings (other than
pursuant to its dividend reinvestment plan) and invested substantially
all of the net proceeds of such Offerings, unless a majority of the
Board (including a majority of the Independent Directors) not otherwise
interested in any transaction approves the excess as being commercially
competitive, fair and reasonable to the Company.
(c) SUBORDINATED ACQUISITION FEE. In addition to the Acquisition
Fee described in Section 9(b) above, the Advisor may receive as
additional compensation for services rendered in connection with the
investigation, selection, acquisition or origination (by purchase,
investment or exchange) of Properties and Loans a Subordinated
Acquisition Fee payable by the Company to the Advisor or its Affiliates
(the "SUBORDINATED ACQUISITION FEE"). The total Subordinated
Acquisition Fees paid may not exceed two percent of the aggregate Total
Property Cost of all Properties and Loans purchased and originated by
the Company, measured at such time as the Company shall have completed
all Offerings (other than pursuant to its dividend reinvestment plan)
and invested substantially all of the net proceeds of such Offerings,
unless a majority of the Directors (including a majority of the
Independent Directors) not otherwise interested in any transaction
approves the excess as being commercially competitive, fair and
reasonable to the Company. The unpaid portion of the Subordinated
Acquisition Fee payable to the Advisor and its Affiliates with respect
to any Property or Loan shall bear interest at the rate of five percent
per annum from the date of acquisition of such Property or Loan until
such portion is paid. Subject to the following sentence, the
Subordinated Acquisition Fee with respect to any Investment Asset shall
be payable in equal annual installments on January 1 of each of the
three calendar years following the date such Asset was purchased;
accrued interest on all unpaid Subordinated Acquisition Fees shall also
be payable on such dates. The portion of the Subordinated Acquisition
Fees, and accrued interest thereon, otherwise payable on any January 1
shall be payable only if the Preferred Return through the end of the
fiscal year preceding such January 1 has been met. Any portion of the
Subordinated Acquisition Fees, and accrued interest thereon, not paid
due to the Company's failure to meet the Preferred Return through any
fiscal year end shall be paid by the Company on the January 1 following
the first fiscal year thereafter through which the Preferred Return has
been met.
(d) SIX PERCENT LIMITATION. The total amount of Acquisition Fees
(including Subordinated Acquisition Fees and any interest thereon),
whether payable to the Advisor or a third party, and Acquisition
Expenses may not exceed six percent of the sum of the
16
aggregate Contract Purchase Price of all Properties and Loans unless a
majority of the Directors (including a majority of the Independent
Directors) not otherwise interested in any transaction approves fees in
excess of this limit as being commercially competitive, fair and
reasonable to the Company.
(e) LOAN REFINANCING FEE. The Company shall pay to the Advisor for
all qualifying loan refinancings of Properties a Loan Refinancing Fee
in the amount up to one percent of the principal amount of the
refinanced loan. Any Loan Refinancing Fee shall be due and payable upon
the funding of the related loan or as soon thereafter as is reasonably
practicable. A refinancing will qualify for a Loan Refinancing Fee only
if the refinanced loan is secured by Property and (i) the maturity date
of the refinanced loan (which must have a term of five years or more)
is less than one year from the date of the refinancing; or (ii) the
terms of the new loan represent, in the judgment of a majority of the
Independent Directors, an improvement over the terms of the refinanced
loan; or (iii) the new loan is approved by the Board, including a
majority of the Independent Directors and, in each case, the Loan
Refinancing Fee is found, in the judgment of a majority of the
Independent Directors, to be in the best interest of the Company.
(f) PROPERTY MANAGEMENT FEE. No Property Management Fee shall be
paid unless approved by a majority of the Independent Directors.
(g) SUBORDINATED DISPOSITION FEE. If the Advisor or an Affiliate
provides a substantial amount of services (as determined by a majority
of the Independent Directors) in the sale of a Property, the Advisor or
such Affiliate shall receive a fee equal to the lesser of: (i) 50% of
the Competitive Real Estate Commission and (ii) three percent of the
Contract Sales Price of such Property (the "SUBORDINATED DISPOSITION
FEE"). The Subordinated Disposition Fee will be paid only if
Shareholders have received in the aggregate a return of 100% of Initial
Investor Capital (through liquidity or Distributions) plus a Preferred
Return through the date the Subordination Disposition Fee has been
paid. The return requirement will be deemed satisfied if the total
Distributions paid by the Company have satisfied the Preferred Return
requirement and the Market Value of the Company equals or exceeds
Adjusted Investor Capital. To the extent that Subordinated Disposition
Fees are not paid by the Company on a current basis due to the
foregoing limitation, the unpaid fees will be due and paid at such time
as the limitation has been satisfied. The Subordinated Disposition Fee
may be paid in addition to real estate commissions paid to
non-Affiliates, provided that the total of all real estate commissions
in respect of a Property paid to all Persons by the Company and the
Subordinated Disposition Fee shall not exceed an amount equal to the
lesser of: (i) six percent of the Contract Sales Price of such Property
or
17
(ii) the Competitive Real Estate Commission. If this Agreement is
terminated prior to such time as the Shareholders have received
(through liquidity or Distributions) a return of 100% of Initial
Investor Capital plus a Preferred Return through the date of
termination of this Agreement, an appraisal of the Properties then
owned by the Company shall be made and any unpaid Subordinated
Disposition Fee on Properties sold prior to the date of termination
will be payable if the Appraised Value of the Properties then owned by
the Company plus Distributions to Shareholders prior to the date of
termination of this Agreement (through liquidity or Distributions) is
equal to or greater than 100% of Initial Investor Capital plus an
amount sufficient to pay a Preferred Return through the date of
termination of this Agreement. If the Company's Shares are listed on a
national securities exchange or included for quotation on Nasdaq and,
at the time of such listing, the Advisor or an Affiliate has provided a
substantial amount of services in the sale of Property, for purposes of
determining whether the subordination conditions for the payment of the
Subordinated Disposition Fee have been satisfied, Shareholders will be
deemed to have received a Distribution in an amount equal to the Market
Value of the Company.
(h) OTHER PERMITTED INVESTMENT ASSETS FEE. The Advisor may receive
as compensation for services rendered in connection with the
investigation, selection, acquisition or origination of Other Permitted
Investments a fee (the "OTHER PERMITTED INVESTMENT ASSETS FEE") that
shall be negotiated in good faith by the Advisor and the Company and
approved by the Board (including a majority of the Independent
Directors) on a case by case basis; provided that such compensation
shall be on terms not more favorable, taken as a whole, than what the
Advisor receives in respect of investments in Properties and Loans.
(i) SUBORDINATED INCENTIVE FEE. A fee shall be payable to the
Advisor in an amount equal to 15% of Cash from Sales distributable to
Shareholders after Shareholders have received a return of 100% of
Initial Investor Capital (through liquidity or Distributions) plus a
Preferred Return through the date payment is made (the "SUBORDINATED
INCENTIVE FEE"). For these purposes the Shareholders will be deemed to
have been provided liquidity if the Shares are listed on a national
security exchange or included for quotation on Nasdaq. The return
requirement will be deemed satisfied if the total Distributions paid by
the Company has satisfied the Preferred Return requirement and the
Market Value of the Company equals or exceeds Adjusted Investor
Capital. The Company shall have the option to pay such fee in the form
of a promissory note or as set forth in Section 9(l). The promissory
note shall be fully amortizing over five years, provide for quarterly
payments and bear interest at the prime rate announced from time to
time in The Wall Street Journal.
18
(j) LOANS FROM AFFILIATES. The Company shall not borrow funds from
the Advisor or its Affiliates unless (A) the transaction is approved by
a majority of the Independent Directors and a majority of the Directors
who are not interested in the transaction as being fair, competitive
and commercially reasonable, (B) the interest and other financing
charges or fees received by the Advisor or its Affiliates do not exceed
the amount which would be charged by non-affiliated lending
institutions and (C) the terms are not less favorable than those
prevailing for comparable arm's-length loans for the same purpose. The
Company will not borrow on a long-term basis from the Advisor or its
Affiliates unless it is to provide the debt portion of a particular
investment and the Company is unable to obtain a permanent loan at that
time or in the judgment of the Board, it is not in the Company's best
interest to obtain a permanent loan at the interest rates then
prevailing and the Board has reason to believe that the Company will be
able to obtain a permanent loan on or prior to the end of the loan term
provided by the Advisor or its Affiliates.
(k) CHANGES TO FEE STRUCTURE. In the event the Shares are listed
on a national securities exchange or are included for quotation on
Nasdaq, the Company and the Advisor shall negotiate in good faith to
establish a fee structure appropriate for an entity with a perpetual
life. A majority of the Independent Directors must approve the new fee
structure negotiated with the Advisor. In negotiating a new fee
structure, the Independent Directors may consider any of the factors
they deem relevant, including but not limited to: (a) the size of the
Advisory Fee in relation to the size, composition and profitability of
the Company's portfolio; (b) the success of the Advisor in generating
opportunities that meet the investment objectives of the Company; (c)
the rates charged to other REITs and to investors other than REITs by
Advisors performing similar services; (d) additional revenues realized
by the Advisor and its Affiliates through their relationship with the
Company, including loan administration, underwriting or broker
commissions, servicing, engineering, inspection and other fees, whether
paid by the Company or by others with whom the Company does business;
(e) the quality and extent of service and advice furnished by the
Advisor; (f) the performance of the investment portfolio of the
Company, including income, conversion or appreciation of capital,
frequency of problem investments and competence in dealing with
distress situations; and (g) the quality of the portfolio of the
Company in relationship to the investments generated by the Advisor for
its own account. The new fee structure can be no more favorable to the
Advisor than the current fee structure.
(l) PAYMENT. Compensation payable to the Advisor pursuant to this
Section 9 shall be paid in cash; provided, however, that any fee
payable pursuant to Section 9 may be paid, at the option of the
19
Advisor, in the form of: (i) cash, (ii) common stock of the Company, or
(iii) a combination of cash and common stock. The Advisor shall notify
the Company in writing annually of the form in which the fee shall be
paid. Such notice shall be provided no later than January 15 of each
year. If no such notice is provided, the fee shall be paid in cash. For
purposes of the payment of compensation to the Advisor in the form of
stock, the value of each share of common stock shall be: (i) the Net
Asset Value per Share as determined by the most recent appraisal of the
Company's assets performed by an Independent Appraiser, or (ii) if an
appraisal has not yet been performed, $10 per share. If shares are
being offered to the public at the time a fee is paid with stock, the
value shall be the price of the stock without commissions. The Net
Asset Value determined on the basis of such appraisal may be adjusted
on a quarterly basis by the Board to account for significant capital
transactions. Stock issued by the Company to the Advisor in payment of
fees hereunder shall be governed by the terms set forth in Schedule A
hereto, or such other terms as the Advisor and the Company may from
time to time agree.
10. EXPENSES. (a) Subject to the limitations set forth in Section 9(d),
to the extent applicable, in addition to the compensation paid to the Advisor
pursuant to Section 9 hereof, the Company shall pay directly or reimburse the
Advisor for the following expenses:
(i) the Company's Organization and Offering Expenses;
provided however, that within 60 days after the end of the month
in which any Offering terminates, the Advisor shall reimburse the
Company for any Organization and Offering Expense reimbursements
received by the Advisor pursuant to this Section 10 to the extent
that such reimbursements, when added to the balance of the
Organization and Offering Expenses (excluding selling commissions,
and fees paid and expenses reimbursed to the Selected Dealers)
paid directly by the Company, exceed four percent of the Gross
Offering Proceeds; provided further, however, that the Advisor
shall be responsible for the payment of all Organization and
Offering Expenses (excluding such commissions and such fees and
expense reimbursements) in excess of four percent of the Gross
Offering Proceeds;
(ii) expenses other than Acquisition Expenses incurred in
connection with the investment of the funds of the Company;
(iii) interest and other costs for borrowed money, including
discounts, points and other similar fees;
20
(iv) taxes and assessments on income of the Company, to the
extent paid or advanced by the Advisor, or on Property and taxes
as an expense of doing business;
(v) costs associated with insurance required in connection
with the business of the Company or by the Directors;
(vi) expenses of managing and operating Properties owned by
the Company, whether payable to an Affiliate of the Advisor or a
non-affiliated Person;
(vii) fees and expenses of legal counsel for the Company;
(viii) fees and expense of auditors and accountants for the
Company;
(ix) all expenses in connection with payments to the
Directors and meetings of the Directors and Shareholders;
(x) expenses associated with listing the Shares and
Securities on a securities exchange or Nasdaq if requested by the
Board;
(xi) expenses connected with payments of Distributions in
cash or otherwise made or caused to be made by the Board to the
Shareholders;
(xii) expenses of organizing, revising, amending, converting,
modifying, or terminating the Company or the Articles of
Incorporation;
(xiii) expenses of maintaining communications with
Shareholders, including the cost of preparation, printing and
mailing annual reports and other Shareholder reports, proxy
statements and other reports required by governmental entities;
(xiv) expenses related to the Properties and Loans and other
fees relating to making investments including personnel and other
costs incurred in Property or Loan transactions where a fee is not
payable to the Advisor other than as provided in Section 10(b)
hereof; and
(xv) all other expenses the Advisor incurs in connection with
providing services to the Company, including reimbursement to the
Advisor or its Affiliates for the cost of rent, goods, materials
and personnel incurred by them based upon the compensation of the
Persons involved and an appropriate share of
21
overhead allocable to those Persons as reasonably determined by
the Advisor on a basis approved annually by the Board (including a
majority of the Independent Directors). No reimbursement shall be
made for the cost of personnel to the extent that such personnel
are used in transactions for which the Advisor receives a separate
fee.
(b) Notwithstanding anything to the contrary in Section 10(a),
with respect to Properties and Loans acquired using proceeds of the
Part I Offering, the Advisor shall be responsible for payment of (i)
all Acquisition Expenses, (ii) all expenses of whatever nature directly
connected with the proposed acquisition of any property or loan that
does not result in the actual acquisition of Properties or Loans; (iii)
finder's fees and similar payments to the extent not paid by the seller
of Property or other third party; and (iv) costs of retaining industry
or economic consultants. The Company shall pay to the Advisor the
Acquisition Expense Allowance, which shall be used by Advisor to pay
the expenses described in this Section 10(b). To the extent the
expenses paid by the Advisor pursuant to this Section 10(b) exceed the
Acquisition Expense Allowance, the Company shall have no duty to
reimburse the Advisor for the amount of such excess. To the extent the
Acquisition Expense Allowance exceeds the expenses paid by the Advisor
pursuant to this Section 10(b), the Advisor shall have no duty to repay
or account to the Company for any such excess.
(c) With respect to Properties and Loans acquired using proceeds
of the Part II Offering, no Acquisition Expense Allowance shall be
payable to the Advisor and the Company shall be solely responsible for
payment of (i) all Acquisition Expenses; (ii) all expenses of whatever
nature directly connected with the proposed acquisition of any property
or loan that does not result in the actual acquisition of Properties or
Loans; (iii) finder's fees and similar payments to the extent not paid
by the seller of Property or other third party; and (iv) costs of
retaining industry or economic consultants.
(d) With respect to Properties and Loans acquired using a mixture
of proceeds from the Part I and Part II Offerings, the Acquisition
Expense Allowance shall be calculated and payable to the Advisor on a
pro rata basis, and the Advisor and the Company shall be responsible
for its respective pro rata share of the expenses described in Section
10(b) and 10(c).
(e) Expenses incurred by the Advisor on behalf of the Company and
payable pursuant to this Section 10 shall be reimbursed quarterly to
the Advisor within 60 days after the end of each quarter. The Advisor
shall prepare a statement documenting the expenses of the Company other
than Acquisition Expenses during each quarter, and shall
22
deliver such statement to the Company within 45 days after the end of
each quarter.
11. OTHER SERVICES. Should the Board request that the Advisor or any
shareholder or employee thereof render services for the Company other than as
set forth in Section 3 hereof, such services shall be separately compensated and
shall not be deemed to be services pursuant to the terms of this Agreement.
12. FIDELITY BOND. The Advisor shall maintain a fidelity bond for the
benefit of the Company which bond shall insure the Company from losses of up to
$5,000,000 and shall be of the type customarily purchased by entities performing
services similar to those provided to the Company by the Advisor.
13. LIMITATION ON EXPENSES. (a) Within 60 days after the end of any
fiscal quarter, if Operating Expenses of the Company during the 12-month period
ending with the last month of such quarter exceed the greater of (i) two percent
of the Average Invested Assets during the same 12-month period or (ii) 25% of
the Adjusted Net Income of the Company during the same 12-month period, then
subject to paragraph (b) of this Section 13, such excess amount shall be the
sole responsibility of the Advisor and the Company shall not be liable for
payment therefor.
(b) Notwithstanding the foregoing, to the extent that the Advisor
becomes responsible for any such excess amount, if a majority of the
Independent Directors finds such excess amount justified based on such
unusual and non-recurring factors as they deem sufficient, the Company
shall reimburse the Advisor in future quarters for the full amount of
such excess, or any portion thereof, but only to the extent such
reimbursement would not cause the Company's Operating Expenses to
exceed the 2%/25% Guidelines in the 12-month period ending on any such
quarter. In no event shall the Operating Expenses paid by the Company
in any 12-month period ending at the end of a fiscal quarter exceed the
2%/25% Guidelines.
(c) To the extent Organization and Offering Expenses payable by
the Company exceed 15% of the Gross Offering Proceeds, the excess will
be paid by the Advisor.
(d) All computations made under paragraphs (a) and (b) of this
Section 13 shall be determined in accordance with generally accepted
accounting principles applied on a consistent basis.
(e) If the Advisor receives a Subordinated Incentive Fee for the
sale of Property, Adjusted Net Income, for purposes of calculating the
Operating Expenses, shall exclude the gain from the sale of such
Property.
23
14. OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall
prevent the Advisor from engaging in other activities, including without
limitation direct investment by the Advisor and its Affiliates in assets that
would be suitable for the Company, the rendering of advice to other investors
(including other REITs) and the management of other programs advised, sponsored
or organized by the Advisor or its Affiliates; nor shall this Agreement limit or
restrict the right of the Advisor or any of its Affiliates or of any director,
officer, employee or shareholder of the Advisor or its Affiliates to engage in
any other business or to render services of any kind to any other partnership,
corporation, firm, individual, trust or association. The Advisor may, with
respect to any investment in which the Company is a participant, also render
advice and service to each other participant therein. The Advisor shall report
to the Board the existence of any condition or circumstance, existing or
anticipated, of which it has knowledge, which creates or could create a conflict
of interest between the Advisor's obligations to the Company and its obligations
to or its interest in any other partnership, corporation, firm, individual,
trust or association. The Advisor or its Affiliates shall promptly disclose to
the Board knowledge of such condition or circumstance. If the Sponsor, Advisor,
Director or Affiliates thereof has or have sponsored other investment programs
with similar investment objectives which have investment funds available at the
same time as the Company, it shall be the duty of the Advisor to adopt a
reasonable method by which properties are to be allocated to the competing
investment entities and to use its best efforts to apply such method fairly to
the Company.
The Advisor shall be required to use its best efforts to present a
continuing and suitable investment program to the Company that is consistent
with the investment policies and objectives of the Company, but subject to the
last sentence of the preceding paragraph, neither the Advisor nor any Affiliate
of the Advisor shall be obligated generally to present any particular investment
opportunity to the Company even if the opportunity is of character which, if
presented to the Company, could be taken by the Company.
If the Advisor or its Affiliates is presented with a potential
investment which might be made by the Company and by another investment entity
which the Advisor or its Affiliates advises or manages, the Advisor shall
consider the investment portfolio of each entity, cash flow of each entity, the
effect of the acquisition on the diversification of each entity's portfolio,
rental payments during any renewal period, the estimated income tax effects of
the purchase on each entity, the policies of each entity relating to leverage,
the funds of each entity available for investment, the amount of equity required
to make the investment and the length of time such funds have been available for
investment. To the extent that a Property might be suitable for the Company and
for another investment entity which is advised or managed by the Advisor, the
Advisor shall give priority to the investment entity, including the Company,
which has uninvested funds for the longest period of time. The Advisor may
consider the Property for private placement only if such Property is deemed
inappropriate for
24
any investment entity which is advised or managed by the Advisor, including the
Company.
15. RELATIONSHIP OF ADVISOR AND COMPANY. The Company and the Advisor
agree that they have not created and do not intend to create by this Agreement a
joint venture or partnership relationship between them and nothing in this
Agreement shall be construed to make them partners or joint venturers or impose
any liability as partners or joint venturers on either of them.
16. TERM; TERMINATION OF AGREEMENT. This Agreement, as amended and
restated, shall continue in force until September 30, 2006 and thereafter shall
be automatically renewed from year to year, unless either party shall give
notice in writing of non-renewal to the other party not less than 60 days before
the end of any such year.
17. TERMINATION BY COMPANY. At the sole option the Board (including a
majority of the Independent Directors), this Agreement may be terminated
immediately by written notice of termination from the Company to the Advisor
upon the occurrence of events which would constitute Cause or if any of the
following events occur:
(a) If the Advisor shall breach this Agreement; provided that such
breach (i) is of a material term or condition of this Agreement and
(ii) the Advisor has not cured such breach within 30 days of written
notice thereof or, in the case of any breach that cannot be cured
within 30 days by reasonable effort, has not taken all necessary action
within a reasonable time period to cure such breach;
(b) If the Advisor shall be adjudged bankrupt or insolvent by a
court of competent jurisdiction, or an order shall be made by a court
of competent jurisdiction for the appointment of a receiver,
liquidator, or trustee of the Advisor, for all or substantially all of
its property by reason of the foregoing, or if a court of competent
jurisdiction approves any petition filed against the Advisor for
reorganization, and such adjudication or order shall remain in force or
unstayed for a period of 30 days; or
(c) If the Advisor shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
federal bankruptcy laws, or for relief under any law for relief of
debtors, or shall consent to the appointment of a receiver for itself
or for all or substantially all of its property, or shall make a
general assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts, generally, as they become due.
Any notice of termination under Section 16 or 17 shall be effective on
the date specified in such notice, which may be the day on which such notice is
given or any date thereafter. The Advisor agrees that if any of the events
specified in
25
Section 17(b) or (c) shall occur, it shall give written notice thereof to the
Board within 15 days after the occurrence of such event.
18. TERMINATION BY EITHER PARTY. This Agreement may be terminated
immediately without penalty (but subject to the requirements of Section 20
hereof) by the Advisor by written notice of termination to the Company upon the
occurrence of events which would constitute Good Reason or by the Company
without cause or penalty (but subject to the requirements of Section 20 hereof)
by action of a majority of the Independent Directors or by action of a majority
of the Shareholders, in either case upon 60 days' written notice.
19. ASSIGNMENT PROHIBITION. This Agreement may not be assigned by the
Advisor without the approval of the Board (including a majority of the
Independent Directors); provided, however, that such approval shall not be
required in the case of an assignment to a corporation, partnership,
association, trust or organization which may take over the assets and carry on
the affairs of the Advisor, provided: (i) that at the time of such assignment,
such successor organization shall be owned substantially by an entity directly
or indirectly controlled by the Sponsor and only if such entity has a net worth
of at least $5,000,000, and (ii) that the board of directors of the Advisor
shall deliver to the Board a statement in writing indicating the ownership
structure and net worth of the successor organization and a certification from
the new Advisor as to its net worth. Such an assignment shall bind the assignees
hereunder in the same manner as the Advisor is bound by this Agreement. The
Advisor may assign any rights to receive fees or other payments under this
Agreement without obtaining the approval of the Board. This Agreement shall not
be assigned by the Company without the consent of the Advisor, except in the
case of an assignment by the Company to a corporation or other organization
which is a successor to the Company, in which case such successor organization
shall be bound hereunder and by the terms of said assignment in the same manner
as the Company is bound by this Agreement.
20. PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.
(a) After the Termination Date, the Advisor shall not be entitled
to compensation for further services hereunder but shall be entitled to
receive from the Company the following:
(i) all unpaid reimbursements of Organization and Offering
Expenses and of Operating Expenses payable to the Advisor;
(ii) all earned but unpaid Asset Management Fees payable to
the Advisor prior to the Termination Date;
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(iii) all earned but unpaid Subordinated Acquisition Fees, in
each case payable to the Advisor relating to the acquisition of
any Property prior to the Termination Date;
(iv) all earned but unpaid Subordinated Disposition Fees
payable to the Advisor relating to the sale of any Property prior
to the Termination Date;
(v) all earned but unpaid Loan Refinancing Fees payable to
the Advisor relating to the financing or refinancing of any
Property prior to the Termination Date; and
(vi) all earned but unpaid Property Management Fees payable
to the Advisor or its Affiliates relating to the management of any
property prior to the termination of this Agreement.
(b) Notwithstanding the foregoing, if this Agreement is terminated
by the Company for Cause, the Advisor will not be entitled to receive
the sums in Section 20(a) above.
(c) If this Agreement is terminated by the Company for any reason
other than Cause, by either party in connection with a Change of
Control, or by the Advisor for Good Reason, the Advisor shall be
entitled to payment of the Termination Fee. Notwithstanding the
foregoing, the Advisor shall not be entitled to payment of the
Termination Fee if:
(i) this Agreement is terminated because of failure of the
Company and the Advisor to establish, following good-faith
negotiations pursuant to Section 9(k) hereof, a fee structure
appropriate for an entity with a perpetual life in the event the
Shares are listed on a national securities exchange or are
included for quotation on Nasdaq, or
(ii) the Subordinated Incentive Fee is paid to the Advisor as
a result of the listing of the Shares on a national securities
exchange or their inclusion for quotation on Nasdaq and this
Agreement is terminated after such listing or inclusion.
(d) Any and all amounts payable to the Advisor pursuant to Section
20(a) and Section 20(c) shall be paid in a manner determined by the
Board, but in no event on terms less favorable to the Advisor than
those represented by a note (i) maturing upon the liquidation of the
Company or three years from the Termination Date, whichever is earlier,
(ii) with no less than twelve equal quarterly installments and (iii)
bearing a fair, competitive and commercially reasonable interest rate
(the "NOTE"). The Note, if any, may be prepaid by the Company at any
time prior to maturity with accrued interest to the date of payment but
without premium
27
or penalty. Notwithstanding the foregoing, any amounts that relate to
Investment Assets (i) shall be an amount which provides compensation to
the Advisor only for that portion of the holding period for the
respective Investment Assets during which the Advisor provided services
to the Company, (ii) shall not be due and payable until the Investment
Asset to which such amount relates is sold or refinanced, and (iii)
shall not bear interest until the Investment Asset to which such amount
relates is sold or refinanced. A portion of the amount shall be paid as
each Investment Asset owned by the Company on the Termination Date is
sold. The portion of such amount payable upon each such sale shall be
equal to (i) such amount multiplied by (ii) the percentage calculated
by dividing the fair value (at the Termination Date) of the Investment
Asset sold by the Company divided by the total fair value (at the
Termination Date) of all Investment Assets owned by the Company on the
Termination Date. For purposes of the Termination Fee, the fair value
of any Property shall be its Appraised Value.
(e) The Advisor shall promptly upon termination:
(i) pay over to the Company all money collected and held for
the account of the Company pursuant to this Agreement, after
deducting any accrued compensation and reimbursement for its
expenses to which it is then entitled;
(ii) deliver to the Board a full accounting, including a
statement showing all payments collected by it and a statement of
all money held by it, covering the period following the date of
the last accounting furnished to the Board;
(iii) deliver to the Board all assets, including Properties
and Loans, and documents of the Company then in the custody of the
Advisor; and
(iv) cooperate with the Company to provide an orderly
management transition.
21. INDEMNIFICATION BY THE COMPANY. (a) The Company shall not indemnify
the Advisor or any of its Affiliates for any loss or liability suffered by the
Advisor or the Affiliate, or hold the Advisor or the Affiliate harmless for any
loss or liability suffered by the Company, unless all of the following
conditions are met:
(i) The Advisor or Affiliate has determined, in good faith,
that the course of conduct which caused the loss or liability was
in the best interests of the Company;
28
(ii) The Advisor or the Affiliate was acting on behalf of or
performing services for the Company; and
(iii) Such liability or loss was not the result of negligence
or misconduct by the Advisor or the Affiliate.
(b) Notwithstanding the foregoing, the Advisor and its Affiliates
shall not be indemnified by the Company for any losses, liabilities or
expenses arising from or out of the alleged violation of federal or
state securities laws unless one or more of the following conditions
are met:
(i) There has been a successful adjudication on the merits of
each count involving alleged securities law violations as to the
particular indemnitee;
(ii) Such claims have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the particular
indemnitee; or
(iii) A court of competent jurisdiction approves a settlement
of the claims against a particular indemnitee and finds that
indemnification of the settlement and the related costs should be
made, and the court considering the request for indemnification
has been advised of the position of the Securities and Exchange
Commission and of the published position of any state securities
regulatory authority in which securities of the Company were
offered or sold as to indemnification for violation of securities
laws.
(c) The Company shall advance funds to the Advisor or its
Affiliates for legal expenses and other costs incurred as a result of
any legal action for which indemnification is being sought only if all
of the following conditions are satisfied:
(i) The legal action relates to acts or omissions with
respect to the performance of duties or services on behalf of the
Company;
(ii) The legal action is initiated by a third party who is
not a Shareholder or the legal action is initiated by a
Shareholder acting in his or her capacity as such and a court of
competent jurisdiction specifically approves such advancement; and
(iii) The Advisor or the Affiliate undertakes to repay the
advanced funds to the Company, together with the applicable
29
legal rate of interest thereon, in cases in which such Advisor or
Affiliate is found not to be entitled to indemnification.
(d) Notwithstanding the foregoing, the Advisor shall not be
entitled to indemnification or be held harmless pursuant to this
Section 21 for any activity which the Advisor shall be required to
indemnify or hold harmless the Company pursuant to Section 22.
(e) Any amounts paid pursuant to this Section 21 shall be
recoverable or paid only out the net assets of the Company and not from
Shareholders.
22. INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify and hold
harmless the Company from liability, claims, damages, taxes or losses and
related expenses including attorneys' fees, to the extent that such liability,
claims, damages, taxes or losses and related expenses are not fully reimbursed
by insurance and are incurred by reason of the Advisor's bad faith, fraud,
willful misfeasance, misconduct, negligence or reckless disregard of its duties.
23. 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 by hand or by overnight
mail or other overnight delivery service to the addresses set forth herein:
To the Board Corporate Property Associates 16 - Global
and to the Company: Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
To the Advisor: Xxxxx Asset Management Corp.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Either party may at any time give notice in writing to the other party
of a change in its address for the purposes of this Section 23.
24. MODIFICATION. This Agreement shall not be changed, modified,
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
25. SEVERABILITY. 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.
30
26. CONSTRUCTION. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York.
27. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
28. INDULGENCES, NOT 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 other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
29. 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.
30. TITLES NOT TO AFFECT INTERPRETATION. The titles of Sections and
subsections contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
31. 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.
32. NAME. W.P. Xxxxx & Co. LLC has a proprietary interest in the name
"Corporate Property Associates" and "CPA(R)" Accordingly, and in recognition of
this right, if at any time the Company ceases to retain Xxxxx Asset Management
Corp., or an Affiliate thereof to perform the services of Advisor, the Company
will, promptly after receipt of written request from Xxxxx Asset Management
Corp., cease to conduct business under or use the name "Corporate Property
Associates" or "CPA(R)" or any diminutive thereof and the Company
31
shall use its best efforts to change the name of the Company to a name that does
not contain the name "Corporate Property Associates" or "CPA(R)" or any other
word or words that might, in the sole discretion of the Advisor, be susceptible
of indication of some form of relationship between the Company and the Advisor
or any Affiliate thereof. Consistent with the foregoing, it is specifically
recognized that the Advisor or one or more of its Affiliates has in the past and
may in the future organize, sponsor or otherwise permit to exist other
investment vehicles (including vehicles for investment in real estate) and
financial and service organizations having "Corporate Property Associates" or
"CPA(R)" as a part of their name, all without the need for any consent (and
without the right to object thereto) by the Company or its Directors.
33. INITIAL INVESTMENT. The Advisor has contributed to the Company
$200,000 in exchange for 20,000 Shares (the "INITIAL INVESTMENT"). The Advisor
or its Affiliates may not sell any of the Shares purchased with the Initial
Investment during the term of this Agreement. The restrictions included above
shall not continue to apply to any Shares other than the Share acquired through
the Initial Investment acquired by the Advisor or its Affiliates. The Advisor
shall not vote any Shares it now owns or hereafter acquires in any vote for the
election of Directors or any vote regarding the approval or termination of any
contract with the Advisor or any of its Affiliates.
32
IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL
INCORPORATED
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
XXXXX ASSET MANAGEMENT CORP.
By: /s/ Xxxxxx XxXxx
--------------------------------------------
Name: Xxxxxx XxXxx
Title: President and Chief Executive Officer
33
SCHEDULE A
This Schedule sets forth the terms governing any Shares issued by the
Company to the Advisor in payment of advisory fees set forth in the Agreement.
1. Restrictions. The Shares are subject to vesting over a five-year
period. The Shares shall vest ratably over a five-year period with 20% of the
Shares paid in each payment vesting on each of the first through fifth
anniversary of the date hereof. Prior to the vesting of the ownership of the
Shares in the Advisor, the Shares may not be transferred by the Advisor.
2. Immediate Vesting. Upon the expiration of the Agreement for any
reason other than a termination for Cause under paragraph 17 or upon a "Change
of Control" of CPA(R):16 (as defined below), all Shares granted to the Advisor
hereunder shall vest immediately and all restrictions shall lapse. For purposes
of this Schedule A, a "Change of Control" of the Company shall be deemed to have
occurred if there has been a change in the ownership of the Company of a nature
that would be required to be reported in response to the disclosure requirements
of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), as enacted and in force on the date
hereof, whether or not the Company is then subject to such reporting
requirements; provided, however, that, without limitation, a Change of Control
shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company, any of its subsidiaries, any trustee,
fiduciary or other person or entity holding securities under any employee
benefit plan of the Company or any of its subsidiaries), together with all
"affiliates" and "associates" (as such terms are defined in Rule 14b-2 under the
Exchange Act) of such person, shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of either (A) the combined
voting power of the Company's then outstanding securities having the right to
vote in an election of the Board ("VOTING SECURITIES") or (B) the then
outstanding common stock of the Company (in either such case other than as a
result of acquisition of securities directly from the Company);
(ii) persons who, as of the date hereof, constitute the Board (the
"INCUMBENT DIRECTORS") cease for any reason, including without limitation, as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board, provided that any person becoming a
director of the Company subsequent to the date hereof whose election or
nomination for election was approved by a vote of at least a majority of the
Incumbent Directors shall be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any subsidiary where the stockholders
A-1
of the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares
representing in the aggregate 50% or more of the voting equity of the entity
issuing cash or securities in the consolidation or merger (or of its ultimate
parent entity, if any), (B) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any party as
a single plan) of all or substantially all of the assets of the Company or (C)
any plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "CHANGE OF CONTROL" shall not be
deemed to have occurred for purposes of the foregoing clause (i) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of Shares of Common Stock outstanding, increases (A) the proportionate
number of Shares beneficially owned by any person to 25% or more of the Shares
then outstanding, or (B) the proportionate voting power represented by the
Shares beneficially owned by any person to 25% or more of the combined voting
power of all then outstanding voting Securities; provided, however, that if any
person referred to in clause (A) or (B) of this sentence shall thereafter become
the beneficial owner of any additional Shares or other Voting Securities (other
than pursuant to a Share split, Share dividend, or similar transaction), then a
"Change of Control" shall be deemed to have occurred for purposes of the
foregoing clause (i).
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