EXHIBIT 10.2
ADVISORY AGREEMENT
This ADVISORY AGREEMENT (this "AGREEMENT") is entered into on this the
____ day of _____________, 2003, by and between BEHRINGER HARVARD REIT I, INC.,
a Maryland corporation (the "COMPANY"), and BEHRINGER ADVISORS LP, a Texas
limited partnership (the "ADVISOR").
W I T N E S S E T H
WHEREAS, the Company will be issuing shares of its common stock, par
value $.0001, to the public, such shares to be registered with the Securities
and Exchange Commission and may subsequently issue additional securities;
WHEREAS, the Company intends to continue to qualify as a real estate
investment trust and to invest its funds in investments permitted by the terms
of the Company's Articles of Incorporation and Sections 856 through 860 of the
Internal Revenue Code;
WHEREAS, the Company desires to avail itself of the experience, sources
of information, advice, assistance and certain facilities available to the
Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of, and subject to the supervision of, the
Board of Directors of the Company, all as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services,
subject to the supervision of the Board of Directors, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
The following defined terms used in this Agreement shall have the
meanings specified below:
ACQUISITION EXPENSES. Any and all expenses incurred by the Company, the Advisor,
or any Affiliate of either in connection with the selection, acquisition or
development of any Asset, whether or not acquired, including, without
limitation, legal fees and expenses, travel and communications expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, and title insurance premiums.
ACQUISITION FEES. Any and all fees and commissions, exclusive of Acquisition
Expenses but including the Acquisition and Advisory Fees, paid by any Person to
any other Person (including any fees or commissions paid by or to any Affiliate
of the Company or the Advisor) in connection with making or investing in
Mortgages or the purchase, development or construction of an Asset, including,
without limitation, real estate commissions, selection fees, Development Fees,
Construction Fees, non-recurring management fees, loan fees, points or any other
fees of a similar nature. Excluded shall be Development Fees and Construction
Fees paid to any Person not affiliated with the Sponsor in connection with the
actual development and construction of any Property.
ACQUISITION AND ADVISORY FEES. The fees payable to the Advisor pursuant to
Section 3.01(b).
ADVISOR. Behringer Advisors LP, a Texas limited partnership, any successor
advisor to the Company, or any Person to which Behringer Advisors LP or any
successor advisor subcontracts all or substantially all of its functions.
AFFILIATE OR AFFILIATED. As to any Person, (i) any Person directly or indirectly
owning, controlling, or holding, with the power to vote, 10% or more of the
outstanding voting securities of such Person; (ii) any Person 10% or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held, with power to vote, by such other Person; (iii) any Person,
directly or indirectly, controlling, controlled by, or under common control with
such Person; (iv) any executive officer, director, trustee or general partner of
such Person; and (v) any legal entity for which such Person acts as an executive
officer, director, trustee or general partner.
AGGREGATE ASSETS VALUE. The aggregate book value of the Assets at the time of
measurement before deducting depreciation, bad debts or other similar non-cash
reserves and without reduction for any debt secured by or relating to such
assets; provided, however, that during such periods in which the Company is
obtaining regular independent valuations of the current value of its net assets
for purposes of enabling fiduciaries of employee benefit plan stockholders to
comply with applicable Department of Labor reporting requirements, "Aggregate
Assets Value" will equal the greater of (i) the amount determined pursuant to
the foregoing or (ii) the Assets' aggregate valuation established by the most
recent such valuation report without reduction for depreciation, bad debts or
other non-cash reserves and without reduction for any debt secured by or
relating to such assets.
APPRAISED VALUE. Value according to an appraisal made by an Independent
Appraiser.
ARTICLES OF INCORPORATION. The Articles of Incorporation of the Company filed
with the Maryland State Department of Assessments and Taxation in accordance
with the Maryland General Corporation Law, as amended from time to time.
ASSETS. Properties, Mortgages and other investments (other than investments in
bank accounts, money market funds or other current assets, whether of the
proceeds from an Offering or the sale of an Asset or otherwise) owned by the
Company, directly or indirectly through one or more of its Affiliates.
ASSET MANAGEMENT FEE. The fee payable to the Advisor for day-to-day professional
management services in connection with the Company and its investments in Assets
pursuant to this Agreement.
AVERAGE INVESTED ASSETS. For a specified period, the average of the aggregate
book value of the Assets, computed by taking the average of such values at the
end of each month during such period; provided, however, that during such
periods in which the Company is obtaining regular independent valuations of the
current value of its net assets for purposes of enabling fiduciaries of employee
benefit plan stockholders to comply with applicable Department of Labor
reporting requirements, "Average Invested Assets" will equal the greater of (i)
the amount determined pursuant to the foregoing or (ii) the Assets' aggregate
valuation established by the most recent such valuation report without reduction
for depreciation, bad debts or other non-cash reserves.
BOARD OF DIRECTORS. The Board of Directors of the Company.
BYLAWS. The bylaws of the Company, as the same are in effect from time to time.
CHANGE OF CONTROL. Any issue, transfer or other disposition of Shares of capital
stock of the Company or equity interests in the Partnership (including, without
limitation, pursuant to a merger, share exchange or
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consolidation) which results in a Person or group of Persons beneficially owning
or controlling, directly or indirectly, greater than 50% of the voting power of
the Company or the Partnership.
CODE. Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Code shall mean
such provision as in effect from time to time, as the same may be amended, and
any successor provision thereto, as interpreted by any applicable regulations as
in effect from time to time.
COMPANY. Behringer Harvard REIT I, Inc., a corporation organized under the laws
of the State of Maryland.
COMPETITIVE REAL ESTATE COMMISSION. A real estate or brokerage commission for
the purchase or sale of a Property which 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 rehabilitations on a Property.
CONTRACT PURCHASE PRICE. The amount actually paid or allocated in respect of the
purchase, development, construction or improvement of an Asset or the amount of
funds advanced with respect to a Mortgage, exclusive of Acquisition Fees and
Acquisition Expenses.
CONTRACT SALES PRICE. The total consideration provided for in the sales contract
for the sale of a Property.
DEALER MANAGER. Behringer Securities LP, an Affiliate of the Advisor, or such
Person selected by the Board of Directors to act as the dealer manager for an
Offering.
DEVELOPMENT FEE. A fee for the packaging of a Property or Mortgage, including
the negotiation and approval of plans, and any assistance in obtaining zoning
and necessary variances and financing for a specific Property, either initially
or at a later date.
DIRECTOR. A member of the Board of Directors.
DIVIDENDS. Any dividends or other distributions of money or other property by
the Company to owners of Shares, including distributions that may constitute a
return of capital for federal income tax purposes.
GROSS PROCEEDS. The aggregate purchase price of all Shares sold for the account
of the Company through an Offering, without deduction for selling commissions,
volume discounts, any marketing support and due diligence expense reimbursement
or Organization and Offering Expenses. For the purpose of computing Gross
Proceeds, the purchase price of any Share for which reduced selling commissions
are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to the
Company are not reduced) shall be deemed to be the full amount of the Offering
price per Share pursuant to the Prospectus for such Offering without reduction.
INDEPENDENT APPRAISER. A Person with no material current or prior business or
personal relationship with the Advisor or the Directors and who is a qualified
appraiser of Real Property of the type held by the Company or of other Assets as
determined by the Board of Directors. 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 as to Real Property.
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INDEPENDENT DIRECTOR. A Director who is not on the date of determination, and
within the last two years from the date of determination has not been, directly
or indirectly associated with the Sponsor, the Advisor or any of their
Affiliates by virtue of (i) ownership of an interest in the Sponsor, the Advisor
or any of their Affiliates, other than the Company, (ii) employment by the
Sponsor, the Advisor or any of their Affiliates, (iii) service as an officer or
director of the Sponsor, the Advisor or any of their Affiliates, other than as a
Director of the Company, (iv) performance of services, other than as a Director
of the Company, (v) service as a director or trustee of more than three real
estate investment trusts organized by the Sponsor or advised by the Advisor, or
(vi) maintenance of a material business or professional relationship with the
Sponsor, the Advisor or any of their Affiliates. A business or professional
relationship is considered material if the aggregate gross revenue derived by
the Director from the Sponsor, the Advisor and their Affiliates exceeds 5.0% of
either the Director's annual gross income during either of the last two years or
the Director's net worth on a fair market value basis. An indirect association
with the Sponsor or the Advisor shall include circumstances in which a
Director's spouse, parent, child, sibling, mother- or father-in-law, son- or
daughter-in-law, or brother- or sister-in-law is or has been associated with the
Sponsor, the Advisor, any of their Affiliates, or the Company.
INTELLECTUAL PROPERTY RIGHTS. All rights, titles and interests, whether foreign
or domestic, in and to any and all trade secrets, confidential information
rights, patents, invention rights, copyrights, service marks, trademarks,
know-how, or similar intellectual property rights and all applications and
rights to apply for such rights, as well as any and all moral rights, rights of
privacy, publicity and similar rights and license rights of any type under the
laws or regulations of any governmental, regulatory, or judicial authority,
foreign or domestic and all renewals and extensions thereof.
INVESTED CAPITAL. The amount calculated by multiplying the total number of
Shares purchased by Stockholders by the issue price, reduced by the portion of
any Dividend that is attributable to Net Sales Proceeds and by any amounts paid
by the Company to repurchase Shares pursuant to the Company's plan for
repurchase of Shares.
JOINT VENTURES. The joint venture or partnership arrangements in which the
Company or the Partnership is a co-venturer or general partner which are
established to acquire or hold Assets.
LISTING OR LISTED. The listing of the Shares of the Company on a national
securities exchange or the quotation of shares on The Nasdaq Stock Market. Upon
such Listing, the Shares shall be deemed Listed.
MORTGAGES. In connection with mortgage financing provided, invested in or
purchased by the Company, all of the notes, deeds of trust, security interests
or other evidences of indebtedness or obligations, which are secured or
collateralized by Real Property owned by the borrowers under such notes, deeds
of trust, security interests or other evidences of indebtedness or obligations.
NET INCOME. For any period, the Company's total revenues applicable to such
period, less the total expenses applicable to such period other than additions
to reserves for depreciation, bad debts or other similar non-cash reserves and
excluding any gain from the sale of the Assets.
NET SALES PROCEEDS. In the case of a transaction described in clause (i)(A) of
the definition of Sale, the proceeds of any such transaction less the amount of
selling expenses incurred by or on behalf of the Company, including all real
estate commissions, closing costs and legal fees and expenses. In the case of a
transaction described in clause (i)(B) of such definition, Net Sales Proceeds
means the proceeds of any such transaction less the amount of selling expenses
incurred by or on behalf of the Company, including any legal fees and expenses
and other selling expenses incurred in connection with such transaction. In the
case of a transaction described in clause (i)(C) of such definition, Net Sales
Proceeds means the proceeds of any such transaction actually distributed to the
Company from the Joint Venture less the
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amount of any selling expenses, including legal fees and expenses incurred by or
on behalf of the Company (other than those paid by the Joint Venture). In the
case of a transaction or series of transactions described in clause (i)(D) of
the definition of Sale, Net Sales Proceeds means the proceeds of any such
transaction (including the aggregate of all payments under a Mortgage or in
satisfaction thereof other than regularly scheduled interest payments) less the
amount of selling expenses incurred by or on behalf of the Company, including
all commissions closing costs and legal fees and expenses. In the case of a
transaction described in clause (i)(E) of such definition, Net Sales Proceeds
means the proceeds of any such transaction less the amount of selling expenses
incurred by or on behalf of the Company, including any legal fees and expenses
and other selling expenses incurred in connection with such transaction. In the
case of a transaction described in clause (ii) of the definition of Sale, Net
Sales Proceeds means the proceeds of such transaction or series of transactions
less all amounts generated thereby which are reinvested in one or more Assets
within 180 days thereafter and less the amount of any real estate commissions,
closing costs, and legal fees and expenses and other selling expenses incurred
by or allocated to the Company in connection with such transaction or series of
transactions. Net Sales Proceeds shall also include any consideration (including
non-cash consideration such as stock, notes, or other property or securities)
that the Company determines, in its discretion, to be economically equivalent to
proceeds of a Sale, valued in the reasonable determination of the Company. Net
Sales Proceeds shall not include any reserves established by the Company in its
sole discretion.
OFFERING. Any public offering of Shares pursuant to an effective registration
statement filed under the Securities Act.
OPERATING EXPENSES. All costs and expenses paid or incurred by the Company, as
determined under generally accepted accounting principles, which are in any way
related to the operation of the Company or to Company business, including the
Asset Management Fee, but excluding (i) the expenses of raising capital such as
Organization and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other such
expenses and tax incurred in connection with the issuance, distribution,
transfer, registration and Listing of the Shares, (ii) interest payments, (iii)
taxes, (iv) non-cash expenditures such as depreciation, amortization and bad
debt reserves, (v) the Subordinated Share of Net Sales Proceeds, (vi) the
Performance Fee, (vii) the Subordinated Incentive Listing Fee, (viii)
Acquisition Fees and Acquisition Expenses, (ix) real estate commissions on the
Sale of Property, and (x) other fees and expenses connected with the
acquisition, disposition, management and ownership of real estate interests,
mortgage loans or other property (including the costs of foreclosure, insurance
premiums, legal services, maintenance, repair and improvement of property).
ORGANIZATION AND OFFERING EXPENSES. Any and all costs and expenses, other than
selling commissions and the 2.5% dealer manager fee, incurred by the Advisor or
any Affiliate in connection with the formation, qualification and registration
of the Company and the marketing and distribution of its Shares, including,
without limitation, the following: legal, accounting and escrow fees; printing,
amending, supplementing, mailing and distributing costs; filing, registration
and qualification fees and taxes; telecopier and telephone costs; and all
advertising and marketing expenses, including the costs related to investor and
broker-dealer sales meetings.
PARTNERSHIP. Behringer Harvard Operating Partnership I LP, a Texas limited
partnership, through which the Company may own Assets.
PERFORMANCE FEE. The fee payable to the Advisor upon termination of this
Agreement under certain circumstances if certain performance standards have been
met pursuant to Section 4.03(b) or (c).
PERSON. An individual, corporation, business trust, estate, trust, partnership,
limited liability company or other legal entity.
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PROPERTY OR PROPERTIES. As the context requires, any, or all, respectively, of
the Real Property acquired by the Company, either directly or through joint
venture arrangements or other partnership or investment interests.
PROPRIETARY PROPERTY. All modeling algorithms, tools, computer programs,
know-how, methodologies, processes, technologies, ideas, concepts, skills,
routines, subroutines, operating instructions and other materials and aides used
in performing the duties set forth in Section 2.02 that relate to investment
advice regarding current and potential Assets, and all modifications,
enhancements and derivative works of the foregoing.
PROSPECTUS. Prospectus has the meaning set forth in Section 2(10) of the
Securities Act, including a preliminary prospectus, an offering circular as
described in Rule 256 of the General Rules and Regulations under the Securities
Act or, in the case of an intrastate offering, any document by whatever name
known, utilized for the purpose of offering and selling securities of the
Company to the public.
REAL PROPERTY. Land, rights in land (including leasehold interests), and any
buildings, structures, improvements, furnishings, fixtures and equipment located
on or used in connection with land and rights or interests in land.
REIT. A corporation, trust, association or other legal entity (other than a real
estate syndication) that is engaged primarily in investing in equity interests
in real estate (including fee ownership and leasehold interest) or in loans
secured by real estate or both in accordance with Sections 856 through 860 of
the Code.
SALE OR SALES. (i) Any transaction or series of transactions whereby: (A) the
Company or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including the
lease of any Property consisting of a building only, and including any event
with respect to any Property which gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Company or the Partnership
directly or indirectly (except as described in other subsections of this
definition) sells, grants, transfers, conveys, or relinquishes its ownership of
all or substantially all of the interest of the Company or the Partnership in
any Joint Venture in which it is a co-venturer or partner; (C) any Joint Venture
directly or indirectly (except as described in other subsections of this
definition) in which the Company or the Partnership as a co-venturer or partner
sells, grants, transfers, conveys, or relinquishes its ownership of any Property
or portion thereof, including any event with respect to any Property which gives
rise to insurance claims or condemnation awards; (D) the Company or the
Partnership directly or indirectly (except as described in other subsections of
this definition) sells, grants, conveys or relinquishes its interest in any
Mortgage or portion thereof (including with respect to any Mortgage, all
repayments thereunder or in satisfaction thereof other than regularly scheduled
interest payments) and any event with respect to a Mortgage which gives rise to
a significant amount of insurance proceeds or similar awards; or (E) the Company
or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any other Asset not previously described in this
definition or any portion thereof, but (ii) not including any transaction or
series of transactions specified in clause (i) (A) through (E) above in which
the proceeds of such transaction or series of transactions are reinvested in one
or more Assets within 180 days thereafter.
SECURITIES ACT. The Securities Act of 1933, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Securities Act
shall mean such provision as in effect from time to time, as the same may be
amended, and any successor provision thereto, as interpreted by any applicable
regulations as in effect from time to time.
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SHARES. Any shares of the Company's common stock, par value $.0001 per share.
SOLICITING DEALERS. Broker-dealers who are members of the National Association
of Securities Dealers, Inc., or that are exempt from broker-dealer registration,
and who, in either case, have executed participating broker or other agreements
with the Dealer Manager to sell Shares.
SPONSOR. Xxxxxx X. Xxxxxxxxx.
STOCKHOLDERS. The record holders of the Company's Shares as maintained in the
books and records of the Company or its transfer agent.
STOCKHOLDERS' 9.0% RETURN. As of each date, an aggregate amount equal to a 9.0%
cumulative, noncompounded, annual return on Invested Capital.
SUBORDINATED DISPOSITION FEE. The fee payable to the Advisor for services
provided in connection with the Sale of one or more Properties pursuant to
Section 3.01(c).
SUBORDINATED INCENTIVE LISTING FEE. The fee payable to the Advisor under certain
circumstances if the Shares are Listed pursuant to Section 3.01(e).
SUBORDINATED SHARE OF NET SALES PROCEEDS. The fee payable to the Advisor under
certain circumstances following receipt of Net Sales Proceeds pursuant to
Section 3.01(d).
TERMINATION DATE. The date of termination of this Agreement.
2%/25% GUIDELINES. The requirement pursuant to the Statement of Policy Regarding
Real Estate Investment Trusts of the North American Securities Administrators
Association, Inc. that, in any 12 month period, total Operating Expenses not
exceed the greater of 2% of Average Invested Assets during such 12 month period
or 25% of Net Income over the same 12 month period.
ARTICLE II
THE ADVISOR
2.01 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.
2.02 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 of Directors. In performance of this undertaking, subject to
the supervision of the Board of Directors and consistent with the provisions of
the Company's most recent Prospectus for Shares, the Articles of Incorporation
and Bylaws, the Advisor shall, either directly or by engaging an Affiliate of
the Advisor or other Person:
(a) serve as the Company's investment and financial advisor and
provide research and economic and statistical data in connection with
the Assets and investment policies;
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(b) provide the daily management of the Company and perform and
supervise the various administrative functions reasonably necessary for
the management and operations of the Company;
(c) maintain and preserve the books and records of the Company,
including stock books and records reflecting a record of the
Stockholders and their ownership of the Company's uncertificated
Shares, if any, and acting as transfer agent for the Company's Shares;
(d) 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, property management companies, transfer agents 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;
(e) consult with the officers and the Board of Directors and
assist the Board of Directors in the formulation and implementation of
the Company's financial policies, and, as necessary, furnish the Board
of Directors 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;
(f) subject to the provisions of Sections 2.02(h) and 2.03 hereof,
(i) locate, analyze and select potential investments in Assets, (ii)
structure and negotiate the terms and conditions of transactions
pursuant to which investment in Assets will be made; (iii) make
investments in Assets on behalf of the Company or the Partnership in
compliance with the investment objectives and policies of the Company;
(iv) arrange for financing and refinancing and make other changes in
the asset or capital structure of, and dispose of, reinvest the
proceeds from the sale of, or otherwise deal with the investments in,
Assets; and (v) enter into leases of Property and service contracts for
Assets and, to the extent necessary, perform all other operational
functions for the maintenance and administration of such Assets,
including the servicing of Mortgages;
(g) provide the Board of Directors with periodic reports regarding
prospective investments in Assets;
(h) obtain the prior approval of the Board of Directors (including
a majority of all Independent Directors) for any and all investments in
Assets;
(i) negotiate on behalf of the Company with banks or lenders for
loans to be made to the Company, negotiate on behalf of the Company
with investment banking firms and broker-dealers, and negotiate private
sales of Shares and other securities of the Company or obtain loans for
the Company, as and when appropriate, 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;
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(j) obtain reports (which may be prepared by or for the Advisor or
its Affiliates), where appropriate, concerning the value of investments
or contemplated investments of the Company in Assets;
(k) from time to time, or at any time reasonably requested by the
Board of Directors, make reports to the Board of Directors of its
performance of services to the Company under this Agreement;
(l) provide the Company with all necessary cash management
services;
(m) deliver to or maintain on behalf of the Company copies of all
appraisals obtained in connection with the investments in Assets;
(n) upon request of the Company, act, or obtain the services of
others to act, as attorney-in-fact or agent of the Company in making,
requiring and disposing of Assets, disbursing, and collecting the
funds, paying the debts and fulfilling the obligations of the Company
and handling, prosecuting and settling any claims of the Company,
including foreclosing and otherwise enforcing mortgage and other liens
and security interests comprising any of the Assets;
(o) supervise the preparation and filing and distribution of
returns and reports to governmental agencies and to Stockholders and
other investors and act on behalf of the Company in connection with
investor relations;
(p) provide office space, equipment and personnel as required for
the performance of the foregoing services as Advisor;
(q) prepare on behalf of the Company all reports and returns
required by the Securities and Exchange Commission, Internal Revenue
Service and other state or federal governmental agencies; and
(s) do all things necessary to assure its ability to render the
services described in this Agreement.
2.03 AUTHORITY OF ADVISOR.
(a) Pursuant to the terms of this Agreement (including the
restrictions included in this Section 2.03 and in Section 2.06), and
subject to the continuing and exclusive authority of the Board of
Directors over the management of the Company, the Board of Directors
hereby delegates to the Advisor the authority to (i) locate, analyze
and select investment opportunities, (ii) structure the terms and
conditions of transactions pursuant to which investments will be made
or acquired for the Company or the Partnership, (iii) acquire
Properties, make and acquire Mortgages and invest in other Assets in
compliance with the investment objectives and policies of the Company,
(iv) arrange for financing or refinancing of Assets, (v) enter into
leases for the Properties and service contracts for the Assets,
including oversight of Affiliated companies that perform property
management or other services for the Company, (vi) oversee
non-affiliated and Affiliated property managers and other
non-affiliated and Affiliated Persons who perform services for the
Company, and (vii) undertake accounting and other record-keeping
functions at the Asset level.
(b) Notwithstanding the foregoing, any investment in Assets by the
Company or the Partnership (as well as any financing acquired by the
Company or the Partnership in connection
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with such investment), will require the prior approval of the Board of
Directors (including a majority of the Independent Directors).
(c) The prior approval of a majority of the Independent Directors
and a majority of the Board of Directors not otherwise interested in
the transaction will be required for each transaction with the Advisor
or its Affiliates.
(d) If a transaction requires approval by the Board of Directors,
the Advisor will deliver to the Directors all documents required by
them to properly evaluate the proposed transaction.
The Board of Directors may, at any time upon the giving of notice to
the Advisor, modify or revoke the authority set forth in this Section 2.03. If
and to the extent the Board of Directors so modifies or revokes the authority
contained herein, the Advisor shall henceforth submit to the Board of Directors
for prior approval such proposed transactions involving investments in Assets as
thereafter require prior approval, 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.
2.04 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,
under such terms and conditions as the Board of Directors may approve, provided
that no funds shall be commingled with the funds of the Advisor; and the Advisor
shall from time to time render appropriate accountings of such collections and
payments to the Board of Directors, its Audit Committee and the auditors of the
Company.
2.05 RECORDS; ACCESS. The Advisor shall maintain appropriate records of all
its activities hereunder and make such records available for inspection by the
Board of Directors 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.
2.06 LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from taking any action
which, in its sole judgment made in good faith, would (a) adversely affect the
status of the Company as a REIT, (b) subject the Company to regulation under the
Investment Company Act of 1940, as amended, or (c) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Company, the Shares or any of the Company's securities, or
otherwise not be permitted by the Articles of Incorporation or Bylaws, except if
such action shall be ordered by the Board of Directors, in which case the
Advisor shall notify promptly the Board of Directors 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 of
Directors. In such event the Advisor shall have no liability for acting in
accordance with the specific instructions of the Board of Directors so given.
The Advisor, its directors, officers, employees and stockholders, and the
directors, officers, employees and stockholders of the Advisor's Affiliates
shall not be liable to the Company or to the Board of Directors or Stockholders
for any act or omission by the Advisor, its directors, officers, employees or
stockholders, or for any act or omission of any Affiliate of the Advisor, its
directors, officers or employees or stockholders except as provided in Section
5.02 of this Agreement.
2.07 RELATIONSHIP WITH DIRECTORS. Directors, officers and employees of the
Advisor or an Affiliate of the Advisor may serve as Directors, officers or
employees of the Company, except that no director, officer or employee of the
Advisor or its Affiliates who also is a Director shall receive any compensation
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from the Company for serving as a Director other than reasonable reimbursement
for travel and related expenses incurred in attending meetings of the Board of
Directors.
2.08 OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall prevent
the Advisor or its Affiliates from engaging in other activities, including,
without limitation, the rendering of advice to other Persons (including other
REITs) and the management of other programs advised, sponsored or organized by
the Advisor or its Affiliates; nor shall this Agreement limit or restrict the
right of any director, officer, employee, or stockholder of the Advisor or its
Affiliates to engage in any other business or to render services of any kind to
any other Person. The Advisor may, with respect to any investment in which the
Company is a participant, also render advice and service to each and every other
participant therein. The Advisor shall report to the Board of Directors 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 Person. The Advisor or its Affiliates shall promptly disclose to the
Board of Directors knowledge of such condition or circumstance. If the Sponsor,
Advisor, Director or Affiliates thereof 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 Board of Directors
(including the Independent Directors) to adopt the method set forth in the
Company's most recent Prospectus for its Shares or another reasonable method by
which investments are to be allocated to the competing investment entities and
to use their best efforts to apply such method fairly to the Company.
ARTICLE III
COMPENSATION
3.01 FEES.
(a) Asset Management Fee. The Company shall pay the Advisor a
monthly Asset Management Fee on the 15th day of each month in an amount
equal to 1/12th of 0.5% of Aggregate Assets Value as of the last day of
the preceding month. The Asset Management Fee may or may not be taken,
in whole or in part as to any year, in the sole discretion of the
Advisor. All or any portion of the Asset Management Fee not taken as to
any fiscal year shall be deferred without interest and may be taken in
such other fiscal year as the Advisor shall determine.
(b) Acquisition and Advisory Fees. The Company shall pay the
Advisor a fee in the amount of 3.0% of the Contract Purchase Price of
each Asset as Acquisition and Advisory Fees payable at the time and in
respect of funds expended for (i) the acquisition of an Asset, (ii) to
the extent that such funds are capitalized, for the development,
construction or improvement of an Asset, or (iii) the making of a
Mortgage. The total of all Acquisition Fees and any Acquisition
Expenses shall be limited in accordance with the Articles of
Incorporation. All or any portion of any Acquisition and Advisory Fees
and Acquisition Expenses not taken as to any fiscal year shall be
deferred without interest and may be taken in such other fiscal year as
the Advisor shall determine.
(c) Subordinated Disposition Fee. If the Advisor or an Affiliate
provides a substantial amount of the services (as determined by a
majority of the Independent Directors) in connection with the Sale of
one or more Properties, the Advisor or such Affiliate shall receive a
Subordinated Disposition Fee equal to the lesser of (i) one-half of a
Competitive Real Estate Commission or (ii) 3.0% of the sales price of
such Property or Properties. The Subordinated Disposition Fee will be
paid only if Stockholders have received total Dividends in an amount
equal to the sum of their aggregate Invested Capital and Stockholders'
9.0% Return. To the extent that Subordinated
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Disposition Fees are not paid by the Company on a current basis due to
the foregoing limitation, the unpaid fees will be accrued and paid at
such time as the subordination conditions have been satisfied. The
Subordinated Disposition Fee may be paid in addition to real estate
commissions paid to non-Affiliates, provided that the total real estate
commissions paid to all Persons by the Company (including the
Subordinated Disposition Fee) shall not exceed an amount equal to the
lesser of (i) 6.0% of the Contract Sales Price of a Property or (ii)
the Competitive Real Estate Commission. In the event this Agreement is
terminated prior to such time as the Stockholders have received total
Dividends in an amount equal to 100% of Invested Capital plus an amount
sufficient to pay the Stockholders' 9.0% Return through the Termination
Date, an appraisal of the Assets then owned by the Company shall be
made and the Subordinated Disposition Fee on Properties previously sold
will be deemed earned and payable if the Appraised Value of the Assets
plus any investments in bank accounts, money market funds or other
current assets then owned directly or indirectly by the Company plus
total Dividends received prior to the Termination Date equals 100% of
Invested Capital plus an amount sufficient to pay the Stockholders'
9.0% Return through the Termination Date. Upon Listing, if the Advisor
has earned and accrued but not been paid such Subordinated Disposition
Fee, then for purposes of determining whether the subordination
conditions have been satisfied, Stockholders will be deemed to have
received Dividends in the amount equal to the product of the total
number of Shares outstanding and the average closing price of the
Shares over a period, beginning 180 days after Listing, of 30 days
during which the Shares are traded (the "MARKET VALUE").
(d) Subordinated Share of Net Sales Proceeds. The Subordinated
Share of Net Sales Proceeds shall be payable to the Advisor in an
amount equal to 15.0% of Net Sales Proceeds remaining after the
Stockholders have received Dividends equal to the sum of the
Stockholders' 9.0% Return and 100% of Invested Capital. To the extent
that the Subordinated Share of Net Sales Proceeds is not paid by the
Company on a current basis due to the foregoing limitation, the unpaid
amount will be accrued and paid at such time as the subordination
conditions have been satisfied. Following Listing, no Subordinated
Share of Net Sales Proceeds other then any accrued and unpaid
Subordinated Share of Net Sales Proceeds will be paid to the Advisor.
(e) Subordinated Incentive Listing Fee. Upon Listing, the Advisor
shall be entitled to the Subordinated Incentive Listing Fee in an
amount equal to 15.0% of the amount by which (i) the market value of
the outstanding Shares, measured by taking the Market Value, plus the
total of all Dividends paid to Stockholders from the Company's
inception until the date of Listing, exceeds (ii) the sum of (A) 100%
of Invested Capital and (B) the total Dividends required to be paid to
the Stockholders in order to pay the Stockholders' 9.0% Return from
inception through the date of Listing. The Company shall pay such fee,
with interest, at such time as the Company completes the first Sale
after Listing. Payment shall be made from the Net Sales Proceeds of
such Sale. Interest will accrue beginning on the date of Listing at a
rate deemed fair and reasonable by the Independent Directors on the
date of Listing. If the Net Sales Proceeds from the first Sale after
Listing are insufficient to pay the Subordinated Incentive Listing Fee
in full, plus accrued interest, then the Subordinated Incentive Listing
Fee shall be paid in part with such Net Sales Proceeds, and in part
from the Net Sales Proceeds from the next successive Sales until the
Subordinated Incentive Listing Fee is paid in full, with interest. If
the Subordinated Incentive Listing Fee has not been paid in full within
five years from the date of Listing, then the Advisor, its successors
or assigns, may elect to convert the balance of the fee, including
accrued but unpaid interest, into Shares at a price per Share equal to
the average closing price of the Shares over the ten trading days
immediately preceding the date of such election. If the Shares are no
longer listed at such time as the Subordinated Incentive Listing Fee
becomes convertible into Shares as provided by this paragraph, then the
price per Share, for purposes of conversion, shall equal the fair
market
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value for the Shares as determined by the Board of Directors based upon
the Appraised Value of the Assets as of the date of election.
3.02 EXPENSES.
(a) In addition to the compensation paid to the Advisor pursuant
to Section 3.01 hereof, the Company shall pay directly or reimburse the
Advisor for all of the expenses paid or incurred by the Advisor in
connection with the services it provides to the Company pursuant to
this Agreement, including, but not limited to:
(i) Organization and Offering Expenses; provided,
however, that within 60 days after the end of the month in
which an Offering terminates, the Advisor shall reimburse the
Company for any Organization and Offering Expenses
reimbursement received by the Advisor pursuant to this Section
3.02, to the extent that such reimbursement exceeds 2.5% of
the Gross Proceeds. The Advisor shall be responsible for the
payment of all Organization and Offering Expenses in excess of
2.5% of the Gross Proceeds;
(ii) Acquisition Expenses incurred in connection with the
selection and acquisition of Assets in an amount equal to up
to 0.5% of the Contract Purchase Price of each Asset.
(iii) the actual cost of goods, services and materials used
by the Company and obtained from Persons not affiliated with
the Advisor, other than Acquisition Expenses, including
brokerage fees paid in connection with the purchase and sale
of Shares or other securities;
(iv) interest and other costs for borrowed money,
including discounts, points and other similar fees;
(v) taxes and assessments on income or property and taxes
as an expense of doing business;
(vi) costs associated with insurance required in
connection with the business of the Company or by the Board of
Directors;
(vii) expenses of managing and operating Assets owned by
the Company, whether payable to an Affiliate of the Company or
a non-affiliated Person;
(viii) all expenses in connection with payments to the Board
of Directors for attendance at meetings of the Board of
Directors and Stockholders;
(ix) expenses associated with Listing or with the issuance
and distribution of Shares and other securities of the
Company, such as selling commissions and fees, advertising
expenses, taxes, legal and accounting fees, Listing and
registration fees, and other Organization and Offering
Expenses;
(x) expenses connected with payments of Dividends in cash
or otherwise made or caused to be made by the Company to the
Stockholders;
(xi) expenses of organizing, revising, amending,
converting, modifying, or terminating the Company or the
Articles of Incorporation;
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(xii) expenses of any third party transfer agent for the
Shares and of maintaining communications with Stockholders,
including the cost of preparation, printing, and mailing
annual reports and other Stockholder reports, proxy statements
and other reports required by governmental entities;
(xiii) administrative service expenses (including personnel
costs; provided, however, that no reimbursement shall be made
for costs of personnel to the extent that such personnel
perform services in transactions for which the Advisor
receives a separate fee); and
(xiv) audit, accounting and legal fees.
(b) Expenses incurred by the Advisor on behalf of the Company and
payable pursuant to this Section 3.02 shall be reimbursed no less than
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 during each quarter, and shall deliver such statement to the
Company within 45 days after the end of each quarter.
3.03 OTHER SERVICES. Should the Board of Directors request that the Advisor
or any director, officer or employee thereof render services for the Company
other than set forth in Section 2.02, such services shall be separately
compensated at such rates and in such amounts as are agreed by the Advisor and
the Independent Directors, subject to the limitations contained in the Articles
of Incorporation, and shall not be deemed to be services pursuant to the terms
of this Agreement.
3.04 REIMBURSEMENT TO THE ADVISOR. The Company shall not reimburse the
Advisor to the extent that Operating Expenses (including the Asset Management
Fee), in the four consecutive fiscal quarters then ended (the "EXPENSE YEAR")
exceed (the "EXCESS AMOUNT") the greater of 2% of Average Invested Assets or 25%
of Net Income for such year. Any Excess Amount paid to the Advisor during a
fiscal quarter shall be repaid to the Company. Notwithstanding the foregoing, if
there is an Excess Amount in any Expense Year and the Independent Directors
determine that such excess was justified, based on unusual and nonrecurring
factors which they deem sufficient, the Excess Amount may be reimbursed to the
Advisor. Within 60 days after the end of any fiscal quarter of the Company for
which there is an Excess Amount which the Independent Directors conclude was
justified and reimbursable to the Advisor, there shall be sent to the
Stockholders a written disclosure of such fact, together with an explanation of
the factors the Independent Directors considered in determining that such Excess
Amount was justified. Such determination shall be reflected in the minutes of
the meetings of the Board of Directors. The Company will not reimburse the
Advisor or its Affiliates for services for which the Advisor or its Affiliates
are entitled to compensation in the form of a separate fee. All figures used in
any computation pursuant to this Section 3.04 shall be determined in accordance
with generally accepted accounting principles applied on a consistent basis.
ARTICLE IV
TERM AND TERMINATION
4.01 TERM; RENEWAL. Subject to Section 4.02 hereof, this Agreement shall
continue in force until the first anniversary of the date hereof. Thereafter,
this Agreement may be renewed for an unlimited number of successive one-year
terms upon mutual consent of the parties. It is the duty of the Board of
Directors to evaluate the performance of the Advisor annually before renewing
the Agreement, and each such renewal shall be for a term of no more than one
year.
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4.02 TERMINATION. This Agreement will automatically terminate upon Listing.
This agreement also may be terminated at the option of either party immediately
upon a Change of Control or upon 60 days written notice without cause or
penalty, by either party (in either case, if termination is by the Company, then
such termination shall be upon the approval of a majority of the Independent
Directors). Notwithstanding any of the foregoing, the provisions of this
Agreement which provide for payment to the Advisor of expenses, fees or other
compensation following the date of termination (i.e., Sections 3.01(e) and 4.03)
shall continue in full force and effect until all amounts payable thereunder to
the Advisor are paid in full.
4.03 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 except it shall be
entitled to receive from the Company within 30 days after the effective
date of such termination all unpaid reimbursements of expenses, subject
to the provisions of Section 3.04 hereof, and all earned but unpaid
fees payable to the Advisor prior to termination of this Agreement,
provided that the Subordinated Incentive Listing Fee, if any, shall be
paid in accordance with the provisions of Section 3.01(e).
(b) Upon termination, unless such termination is by the Company
because of a material breach of this Agreement by the Advisor or occurs
upon a Change of Control, the Advisor shall be entitled to payment of
the Performance Fee equal to 15.0% of the amount, if any, by which (i)
the Appraised Value of the Assets on the Termination Date, less the
amount of all indebtedness secured by the Assets, plus the total
Dividends paid to Stockholders from the Company's inception through the
Termination Date, exceeds (ii) Invested Capital plus an amount equal to
the Stockholders' 9% Return from inception through the Termination
Date. The Company shall pay such Performance Fee, with interest, at
such time as the Company completes the first Sale after the Termination
Date. Payment shall be made from the Net Sales Proceeds of such Sale.
Interest will accrue beginning on the Termination Date at a rate deemed
fair and reasonable by the Independent Directors on the Termination
Date. If the Net Sales Proceeds from the first Sale after the
Termination Date are insufficient to pay the Performance Fee in full,
plus accrued interest, then the Performance Fee shall be paid in part
with such Net Sales Proceeds, and in part from the Net Sales Proceeds
from the next successive Sales until the Performance Fee is paid in
full, with interest. If the Performance Fee has not been paid in full
within five years from the Termination Date, then the Advisor, its
successors or assigns, may elect to convert the balance of the fee,
including accrued but unpaid interest, into Shares at a price per Share
equal to the average closing price of the Shares over the ten trading
days immediately preceding the date of such election if the Shares are
Listed at such time. If the Shares are not Listed at such time, the
Advisor, its successors or assigns, may elect to convert the balance of
the fee, including accrued but unpaid interest, into Shares at a price
per Share equal to the fair market value for the Shares as determined
by the Board of Directors based upon the Appraised Value of the Assets
on the date of election.
(c) Notwithstanding the foregoing, if termination occurs upon a
Change of Control, the Advisor shall be entitled to payment of the
Performance Fee equal to 15.0% of the amount, if any, by which (i) the
value of the Assets on the Termination Date as determined in good faith
by the Board of Directors, including a majority of the Independent
Directors, based upon such factors as the consideration paid in
connection with the Change of Control and the most recent Appraised
Value, less the amount of all indebtedness secured by the Assets, plus
the total Dividends paid to Stockholders from the Company's inception
through the Termination Date, exceeds (ii) Invested Capital plus an
amount equal to the Stockholders' 9% Return from inception through the
Termination Date. The surviving entity in the Change of Control (the
"Successor") shall pay
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such Performance Fee, with interest, at such time as the Surviving
Entity completes the first Sale after the Termination Date. Payment
shall be made from the Net Sales Proceeds of such Sale. Interest will
accrue beginning on the Termination Date at the rate of nine percent
(9%) per annum. If the Net Sales Proceeds from the first Sale after the
Termination Date are insufficient to pay the Performance Fee in full,
plus accrued interest, then the Performance Fee shall be paid in part
with such Net Sales Proceeds, and in part from the Net Sales Proceeds
from the next successive Sales until the Performance Fee is paid in
full, with interest. If the Performance Fee has not been paid in full
within five years from the Termination Date, then the Advisor, its
successors or assigns, may elect to convert the balance of the fee,
including accrued but unpaid interest, into shares of common stock of
the Successor ("Successor Shares") at a price per share equal to the
average closing price of the Successor Shares over the ten trading days
immediately preceding the date of such election if the Successor Shares
are Listed at such time. If the Successor Shares are not Listed at such
time, the Advisor, its successors or assigns, may elect to convert the
balance of the fee, including accrued but unpaid interest, into
Successor Shares at a price per share equal to the fair market value of
the Successor Shares, as determined in good faith by the board of
directors of the Successor based upon the appraised value of the assets
of the Successor on the date of election.
(d) In the event that the Advisor disagrees with the valuation of
Shares pursuant to Section 4.03(b) where the Shares are not Listed, or
the value of the Successor Shares pursuant to Section 4.03(c), where
the Successor Shares are not Listed, for purposes of determining the
number of shares to be issued to the Advisor following the Advisor's
election to convert the balance of the Performance Fee owed to the
Advisor, then the fair market value of such shares shall be determined
by an independent appraiser of equity value selected by the Advisor and
the Successor. If the Advisor and the Successor are unable to agree
upon an expert independent appraiser, then each of the Successor and
the Advisor shall name one appraiser and the two named appraisers shall
promptly agree in good faith to the appointment of one such appraiser
whose determination shall be final and binding on the parties.
(e) In the event the Subordinated Incentive Listing Fee is paid to
the Advisor following Listing, no Performance Fee will be paid to the
Advisor.
(f) 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 of Directors 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 of Directors;
(iii) deliver to the Board of Directors all assets,
including the Assets, and documents of the Company then in the
custody of the Advisor; and
(iv) cooperate with the Company and take all reasonable
actions requested by the Company to provide an orderly
management transition.
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ARTICLE V
INDEMNIFICATION
5.01 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or losses
arising in the performance of their duties hereunder, and related expenses,
including reasonable attorneys' fees, to the extent such liability, claims,
damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland, the
Articles of Incorporation and the NASAA Guidelines. The foregoing indemnity
shall extend, without limitation, to any claims to the extent relating to any of
the events or outcomes set forth in the Prospectus as possible results, outcomes
or risks associated with the business and investment objectives of the Company.
Notwithstanding the foregoing, the Advisor shall not be entitled to
indemnification or be held harmless pursuant to this Section 5.01 for any
activity which the Advisor shall be required to indemnify or hold harmless the
Company pursuant to Section 5.02. Any indemnification of the Advisor may be made
only out of the net assets of the Company and not from Stockholders.
5.02 INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify and hold
harmless the Company from contract or other liability, claims, damages, taxes or
losses and related expenses including attorneys' fees, to the extent that such
liability, claims, damages, taxes or losses and related expenses are not fully
reimbursed by insurance and are incurred by reason of the Advisor's bad faith,
fraud, misfeasance, misconduct, negligence or reckless disregard of its duties,
but the Advisor shall not be held responsible for any action of the Board of
Directors in following or declining to follow any advice or recommendation given
by the Advisor.
ARTICLE VI
MISCELLANEOUS
6.01 ASSIGNMENT TO AN AFFILIATE. This Agreement may be assigned by the
Advisor to an Affiliate of the Advisor with the approval of a majority of the
Board of Directors (including a majority of the Independent Directors). The
Advisor may assign any rights to receive fees or other payments under this
Agreement without obtaining the approval of the Board of Directors. 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 all of the assets, rights and
obligations of 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. This Agreement shall be binding on
successors to the Company resulting from a Change of Control or sale of all or
substantially all the assets of the Company or the Partnership, and shall
likewise be binding upon any successor to the Advisor.
6.02 RELATIONSHIP OF ADVISOR AND COMPANY. The Company and the Advisor are
not partners or joint venturers with each other, and nothing in this Agreement
shall be construed to make them such partners or joint venturers or impose any
liability as such on either of them.
6.03 NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is required by the Articles of
Incorporation, the Bylaws, or accepted by the party to whom it is given, and
shall be given by being delivered by hand or by overnight mail or other
overnight delivery service to the addresses set forth herein:
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To the Directors and to the Company: Behringer Harvard REIT I, Inc.
0000 X. Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
To the Advisor: Behringer Advisors LP
0000 X. Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Either party shall, as soon as reasonably practicable, give notice in writing to
the other party of a change in its address for the purposes of this Section
6.03.
6.04 MODIFICATION. This Agreement shall not be changed, modified, or
amended, in whole or in part, except by an instrument in writing signed by both
parties hereto, or their respective successors or assignees.
6.05 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.
6.06 CHOICE OF LAW; VENUE. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of Texas, and
venue for any action brought with respect to any claims arising out of this
Agreement shall be brought exclusively in Dallas County, Texas.
6.07 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 signed by each of the parties
hereto.
6.08 WAIVER. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
6.09 GENDER; NUMBER. 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.
6.10 HEADINGS. The titles and headings 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.
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6.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in multiple
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.
6.12 NAME. Behringer Advisors LP and/or one or more of its Affiliates has a
proprietary interest in the names "Harvard" (for the businesses engaged in by
the Company and its Affiliates) and "Behringer" (for all purposes). Accordingly,
and in recognition of this right, if at any time the Company ceases to retain
Behringer Advisors LP or an Affiliate thereof to perform the services of
Advisor, the Company will, promptly after receipt of written request from
Behringer Advisors LP, cease to conduct business under or use the name "Harvard"
or "Behringer" or any diminutive thereof and the Company shall use its best
efforts to change the name of the Company to a name that does not contain the
name "Harvard" or "Behringer" or any other word or words that might, in the sole
discretion of Behringer Advisors LP, be susceptible of indication of some form
of relationship between the Company and Behringer Advisors LP or any Affiliate
thereof. Consistent with the foregoing, it is specifically recognized that
Behringer Advisors LP 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 "Harvard" or "Behringer" as a part of their name,
all without the need for any consent (and without the right to object thereto)
by the Company or its Board of Directors.
6.13 INITIAL INVESTMENT. The Advisor or one of its Affiliates has
contributed $200,000 (the "INITIAL INVESTMENT") in exchange for 20,000 Shares of
the Company. The Advisor or its Affiliates may not sell any of the Shares
purchased with the Initial Investment while the Advisor acts in an advisory
capacity to the Company. The restrictions included above shall not apply to any
Shares acquired by the Advisor or its Affiliates other than the Shares acquired
through the Initial Investment. Neither the Advisor nor its Affiliates shall
vote any Shares they now own, 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.
6.14 OWNERSHIP OF PROPRIETARY PROPERTY. The Advisor retains ownership of and
reserves all Intellectual Property Rights in the Proprietary Property. To the
extent that the Company has or obtains any claim to any right, title or interest
in the Proprietary Property, including without limitation in any suggestions,
enhancements or contributions that Company may provide regarding the Proprietary
Property, the Company hereby assigns and transfers exclusively to the Advisor
all right, title and interest, including without limitation all Intellectual
Property Rights, free and clear of any liens, encumbrances or licenses in favor
of the Company or any other party, in and to the Proprietary Property. In
addition, at the Advisor's expense, the Company will perform any acts that may
be deemed desirable by the Advisor to evidence more fully the transfer of
ownership of right, title and interest in the Proprietary Property to the
Advisor, including but not limited to the execution of any instruments or
documents now or hereafter requested by the Advisor to perfect, defend or
confirm the assignment described herein, in a form determined by the Advisor.
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the date and year first above written.
BEHRINGER HARVARD REIT I, INC.
By:_________________________________
Xxxxxx X. Xxxxxxxxx, President
BEHRINGER ADVISORS LP
By: Harvard Property Trust, LLC,
its General Partner
By:_________________________________
Xxxxxx X. Xxxxxxx, III
Chief Operating Officer
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