EXHIBIT 10.1
FORM OF ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this "AGREEMENT"), dated as of ___________ ____,
2006 and effective as of the date the Registration Statement (as defined below)
is declared effective by the Securities and Exchange Commission (the "EFFECTIVE
DATE"), is by and among NNN HEALTHCARE/OFFICE REIT, INC., a Maryland corporation
(the "COMPANY"), NNN HEALTHCARE/OFFICE REIT HOLDINGS, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), NNN HEALTHCARE/OFFICE REIT ADVISOR, LLC, a
Delaware limited liability company and, solely for purposes of Section 32 of
this Agreement, TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
("TRIPLE NET").
WITNESSETH
WHEREAS, the Company is filing with the Securities and Exchange Commission
a Registration Statement on Form S-11 (the "REGISTRATION STATEMENT") covering
the initial public offering of its common stock, par value $0.01 per share (the
"SHARES");
WHEREAS, the Company intends to qualify as a REIT (as defined below), and
intends to invest its funds in investments permitted by the terms of the
Company's Articles of Incorporation and Sections 856 through 860 of the Code (as
defined below);
WHEREAS, the Company is the general partner of the Partnership and intends
to conduct all of its business and make all of its investments in Properties and
Real Estate Related Securities through the Partnership;
WHEREAS, the Company and the Partnership desire to avail themselves of the
experience, sources of information, advice, assistance and certain facilities
available to the Advisor (as defined below) 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, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
definitions hereinafter indicated:
ACQUISITION EXPENSES. Any and all expenses incurred by the Company, the
Partnership, the Advisor, or any Affiliate of either in connection with the
selection, evaluation, acquisition and development of, and investment in
Properties, whether or not acquired or made, including, but not limited to,
legal fees and expenses, travel and communications expenses, cost of appraisals
and surveys, nonrefundable option payments on property not acquired, accounting
fees and expenses, computer use related expenses, architectural, engineering and
other property reports, environmental and asbestos audits, title insurance and
escrow fees, loan fees or points or any fee of a similar nature paid to a third
party, however designated, transfer taxes, and personnel and miscellaneous
expenses related to the selection, evaluation and acquisition of properties.
ADVISOR. NNN Healthcare/Office REIT Advisor, LLC, a Delaware limited
liability company, any successor advisor to the Company and the Partnership to
which NNN Healthcare/Office REIT Advisor, LLC or any successor advisor
subcontracts substantially all of its functions.
AFFILIATE OR AFFILIATED. An Affiliate of another Person includes only the
following: (i) any Person directly or indirectly owning, controlling, or holding
with the power to vote ten percent (10%) or more of the outstanding voting
securities of such other Person; (ii) any Person ten percent (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 other Person; (iv) any executive officer, director, trustee, or general
partner of such other Person; and (v) any legal entity for which such Person
acts as an executive officer, director, trustee, or general partner. An entity
shall not be deemed to control or be under common control with an
Advisor-sponsored program unless (i) the entity owns ten percent (10%) or more
of the voting equity interests of such program or (ii) a majority of the board
of directors (or equivalent governing body) of such program is comprised of
Affiliates of the entity.
APPRAISED VALUE. Value according to an appraisal made by an Independent
Appraiser.
ARTICLES OF INCORPORATION. The Articles of Incorporation of the Company
under Title 2 of the Corporations and Associations Article of the Annotated Code
of Maryland dated as of April 20, 2006, as amended from time to time.
ASSET MANAGEMENT FEE. The Asset Management Fee payable to the Advisor as
defined in Section 8(b).
AVERAGE INVESTED ASSETS. For a specified period, the average of the
aggregate Book Value of the assets of the Company invested, directly or
indirectly, in Real Estate Related Securities or Properties, before reserves for
depreciation, bad debts or other similar non-cash reserves, computed by taking
the average of such values at the end of each month during such period.
BOARD OF DIRECTORS OR BOARD. The persons holding such office, as of any
particular time, under the Articles of Incorporation of the Company, whether
they be the Directors named therein or additional or successor Directors.
BOOK VALUE. The value of an asset on the books of the Company, before
allowance for depreciation or amortization.
BYLAWS. The bylaws of the Company, as the same are in effect from time to
time.
CAPPED O&O EXPENSES. All Organizational and Offering Expenses other than
selling commissions, the marketing support fee and the due diligence
reimbursement as described under "Plan of Distribution" to the Registration
Statement.
CAUSE. With respect to the termination of this Agreement, fraud, criminal
conduct, willful misconduct or willful or grossly negligent breach of fiduciary
duty by the Advisor, or a material breach of this Agreement by the Advisor,
provided that (i) the Advisor does not cure any such material breach within
thirty (30) days of receiving notice of such material breach from the Company or
the Partnership, or (ii) such material breach is not of a nature that can be
remedied within such period.
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,
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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. NNN Healthcare/Office REIT, 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.
CONTRACT PURCHASE PRICE. The amount actually paid or allocated in respect
of the purchase, development, construction or improvement of a Property, in each
case exclusive of Real Estate Commissions and Acquisition Expenses.
CONTRACT SALES PRICE. The total consideration received by the Company for
the sale of a Property exclusive of the applicable Disposition Fee.
DIRECTOR. A member of the Board of Directors of the Company.
DISPOSITION FEE. The fee payable to the Advisor under certain circumstances
in connection with the Sale of one or more Properties pursuant to Section 8(c).
DISTRIBUTIONS. Any 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.
FISCAL YEAR. Any period for which any income tax return is submitted by the
Company to the Internal Revenue Service and which is treated by the Internal
Revenue Service as a reporting period.
GOOD REASON. With respect to the termination of this Agreement, (i) any
failure to obtain a satisfactory agreement from any successor to the Company and
the Partnership to assume and agree to perform the Company's and the
Partnership's obligations under this Agreement; or (ii) any material breach of
this Agreement by the Company, provided that (x) the Company does not cure such
material breach within thirty (30) days of receiving notice of such material
breach from the Advisor, or (y) such material breach is not of a nature that can
be remedied within such period.
GROSS INCOME. All cash receipts derived from the operation of any Property,
excluding (i) tenant security deposits unless and until such deposits are
forfeited upon a tenant default and (ii) proceeds from insurance claims,
condemnation proceedings, sales or refinancings.
GROSS OFFERING PROCEEDS. The aggregate purchase price of all Shares sold
for the account of the Company through an Offering, without deduction for volume
discounts or Organizational and Offering Expenses. For the purpose of computing
Gross Offering 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 or entity with no material current or prior
business or personal relationship with the Advisor or the Directors, who is
engaged to a substantial extent in the business of
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rendering opinions regarding the value of assets of the type held by the
Company, and who is a qualified appraiser of real estate as determined by the
Board. 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 who is not and within the last two years
has not been directly or indirectly associated with the Advisor by virtue of (i)
ownership of an interest in the Advisor or its Affiliates, (ii) employment by
the Advisor or its Affiliates, (iii) service as an officer or director of the
Advisor or its Affiliates, (iv) performance of services, other than as a
Director, for the Company, (v) service as a director or trustee of more than
three REITs advised by the Advisor, or (vi) maintenance of a material business
or professional relationship with the Advisor or any of its Affiliates. A
business or professional relationship is considered material if the gross income
derived by the Director from the Advisor and Affiliates (excluding fees for
serving as a director of the Company or other REIT or real estate programs
organized or advised by the Advisor or its Affiliates) exceeds five percent (5%)
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
relationship shall include circumstances in which a Director's spouse, parents,
children, siblings, mothers or fathers-in-law, sons or daughters-in-law, or
brothers or sisters-in-law is or has been associated with the Advisor, any of
its Affiliates, or the Company.
JOINT VENTURE. Any joint venture, partnership, limited liability company or
other Affiliate of the Company (other than the Partnership) that owns, in whole
or in part on behalf of the Company, any Properties.
LEASE FEE. The Lease Fee payable to the Advisor, an Affiliate of the
Advisor or a non-affiliated third party as the Property Manager as defined in
Section 8(d).
LISTING. The term "Listing" shall mean that the Shares have been approved
for trading on (i) the New York Stock Exchange, the American Stock Exchange, or
the Global Market or the Global Select Market of the Nasdaq Stock Market (or any
successor to such entities), or (ii) a national securities exchange (or tier or
segment thereof) that has listing standards that the U.S. Securities and
Exchange Commission has determined by rule are substantially similar to the
listing standards applicable to securities described in Section 18(b)(1)(A) of
the Securities Act of 1933, as amended. Upon such Listing, the Shares shall be
deemed Listed.
NASAA GUIDELINES. The NASAA Statement of Policy Regarding Real Estate
Investment Trusts as in effect on the date hereof.
NET INCOME. For any period, the total revenues applicable to such period,
less the total expenses applicable to such period excluding additions to
reserves for depreciation, bad debts or other similar non-cash reserves;
provided, however, Net Income for purposes of calculating total allowable
Operating Expenses (as defined herein) shall exclude the gain from the sale of
the Company's assets.
OFFERING. Any offering of Shares that is registered with the SEC, excluding
Shares offered under any employee benefit plan.
OFFERING STAGE. The period from the commencement of the Company's initial
public equity offering through the termination of the Company's last public
equity offering prior to Listing. For purposes of this definition, "public
equity offering" does not include offerings on behalf of selling stockholders or
offerings related to a distribution reinvestment plan, employee benefit plan or
the redemption of interests in the Partnership.
OPERATING EXPENSES. All costs and expenses incurred by the Company, as
determined under generally accepted accounting principles, which in any way are
related to the operation of the Company or to Company business, including fees
paid to the Advisor, but excluding (i) the expenses of raising capital such as
Organizational and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other such
expenses and tax incurred in connection with
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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 loan reserves, (v) incentive fees paid in
compliance with Section IV.F of the NASAA Guidelines and (vi) Real Estate
Commissions and Acquisition Expenses, real estate commissions on resale of
property, and other expenses connected with the acquisition, disposition, and
ownership of real estate interests, mortgage loans or other property (such as
the costs of foreclosure, insurance premiums, legal services, maintenance,
repair and improvement of property).
ORGANIZATIONAL AND OFFERING EXPENSES. Any and all costs and expenses,
including selling commissions, the marketing support fee and the due diligence
expense reimbursement, incurred by the Advisor or any Affiliate in connection
with the formation, qualification and registration of the Company and the
marketing and distribution of the Shares, including, without limitation, the
following: total underwriting and brokerage discounts and commissions (including
fees of the underwriter's attorneys); printing, engraving, mailing and
distributing costs; salaries of employees while engaged in sales activity;
telephone and other telecommunications costs; all advertising and marketing
expenses (including the costs related to investor and broker-dealer sales
meetings); charges of transfer agents, registrars, trustees, escrow holders,
depositories and experts; and fees, expenses and taxes related to the filing,
registration and qualification of the sale of the Shares under federal and state
laws, including accountants' and attorneys' fees.
PARTNERSHIP. NNN Healthcare/Office REIT Holdings, L.P., a Delaware limited
partnership formed to own and operate properties on behalf of the Company.
PARTNERSHIP AGREEMENT. The Agreement of Limited Partnership of the
Partnership, as amended from time to time, between the Company, as General
Partner and the Advisor, as the initial Limited Partner.
PERSON. An individual, corporation, partnership, estate, trust (including a
trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a
trust permanently set aside for or to be used exclusively for the purposes
described in Section 642(c) of the Code, association, private foundation within
the meaning of Section 509(a) of the Code, joint stock company or other entity,
or any government or any agency or political subdivision thereof, and also
includes a group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
PROPERTY OR PROPERTIES. Any 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, or any portion thereof, transferred or conveyed to the Company or the
Partnership, either directly or indirectly, or such investments the Board of
Directors and the Advisor mutually designate as Properties to the extent such
investments could be classified as either Properties or Real Estate Related
Securities.
PROPERTY MANAGEMENT FEE. The Property Management Fee payable to the
Advisor, an Affiliate of the Advisor or a no-affiliated third party as the
Property Manager as defined in Section 8(d).
PROPERTY MANAGER. Any entity that has been retained to perform and carry
out property rental, leasing, operation and management services at one or more
of the Properties, excluding persons, entities or independent contractors
retained or hired to perform facility management or other services or tasks at a
particular Property.
REIT. A real estate investment trust under Sections 856 through 860 of the
Code.
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REAL ESTATE COMMISSION. The Real Estate Commission payable to the Advisor
as defined in Section 8(a).
REAL ESTATE RELATED SECURITIES. Any real estate related securities
investments transferred or conveyed to the Company or the Partnership, either
directly or indirectly, or such investments the Board of Directors and the
Advisor mutually designate as Real Estate Related Securities to the extent such
investments could be classified as either Real Estate Related Securities or
Properties.
SALE OR SALES. (i) Any transaction or series of transactions whereby: (A)
the Company or the Partnership (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 the 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 (except as described in other subsections of
this definition) sells, puts, 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
(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 loan or mortgage or any
portion thereof (including with respect to any mortgage or loan, all payments
thereunder or in satisfaction thereof other than regularly scheduled interest
payments) of amounts owed pursuant to such loan or mortgage and any event which
gives rise to the payment of a significant amount of insurance proceeds or
condemnation or similar award; 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 Property
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),
(i)(B), (i)(C), (i)(D) or (i)(E) above in which the proceeds of such transaction
or series of transactions are reinvested in one or more Properties within one
hundred eighty (180) days thereafter.
STOCKHOLDERS. The registered holders of the Shares.
TOTAL DEVELOPMENT COST. With regard to any Property acquired by the Company
prior to or during the development or acquisition stages, all costs and expenses
paid or incurred by the Company that are in any way related to the development
of such Property, including, but not limited to, land and construction costs.
TRIPLE NET. Triple Net Properties, LLC, a Virginia limited liability
company.
2%/25% GUIDELINES. The requirement pursuant to the NASAA Guidelines that,
in any twelve (12)-month period, total Operating Expenses not exceed the greater
of two percent (2%) of the Company's Average Invested Assets during such twelve
(12)-month period or twenty-five percent (25%) of the Company's Net Income over
the same twelve (12)-month period.
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2. APPOINTMENT. The Company and the Partnership appoints the Advisor to
serve as its advisor and asset manager as of the Effective Date, on the terms
and conditions set forth in this Agreement, and the Advisor accepts such
appointment as of the Effective Date.
3. DUTIES AND AUTHORITY OF THE ADVISOR. The Advisor undertakes to use its
reasonable efforts (1) to present to the Company and the Partnership potential
investment opportunities in order 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 and (2) to
manage, administer, promote, maintain, and improve the Properties on an overall
portfolio basis in a diligent manner. The services of the Advisor are to be of
scope and quality not less than those generally performed by professional asset
managers of other similar property portfolios. The Advisor shall make available
the full benefit of the judgment, experience and advice of the members of the
Advisor's organization and staff with respect to the duties it will perform
under this Agreement. The Advisor may also engage a Property Manager, which may
include Affiliates of the Advisor, to manage, promote, and lease the Properties.
To facilitate the Advisor's performance of these undertakings, but subject to
the restrictions included in Sections 4 and 7 and to the continuing and
exclusive authority of the Board and the general partner of the Partnership, the
Company and the Partnership hereby delegate to the Advisor the authority to, and
the Advisor hereby agrees to, either directly or by engaging an Affiliate:
(A) serve as the Company's and the Partnership's investment and financial
advisor and, as requested by the Board, 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 the Partnership and
perform and supervise the various administrative functions reasonably necessary
for the management of the Company and the Partnership;
(C) maintain and preserve the books and records of the Company, including
(i) a stock ledger reflecting a record of the Stockholders and their ownership
of the Company's Shares, (ii) acting as transfer agent for the Company's Shares
or selecting, engaging and overseeing the performance by a third party transfer
agent, and (iii) maintaining the accounting and other record-keeping functions
at the Property and Company levels;
(D) investigate, select, and, on behalf of the Company and the Partnership,
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, real estate management companies,
real estate operating companies, securities investment advisors, 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
and the Partnership with any of the foregoing;
(E) make investments in and dispositions of Real Estate Related Securities
within the discretionary limits and authority as granted by the Board and in
accordance with the Articles of Incorporation;
(F) consult with the officers of the Company and the Board 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
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investment objectives and policies of the Company and in connection with any
borrowings proposed to be undertaken by the Company and the Partnership;
(G) select joint venture partners, structure corresponding agreements and
oversee and monitor these relationships;
(H) recommend to the Board of Directors appropriate transactions which
would provide liquidity to the Stockholders;
(I) oversee the performance by a third party or affiliated Property Manager
of its duties, including collection of payments due from third parties under
contracts related to use of any Property and other assets of the Company and
payment of Property expenses and maintenance;
(J) conduct periodic on-site visits to some or all (as the Advisor deems
reasonably necessary) of the Properties to inspect the physical condition of the
Properties and to evaluate the performance of a third party or affiliated
Property Manager of its duties;
(K) review, analyze and comment upon the operating budgets, capital budgets
and leasing plans prepared and submitted by a third party or affiliated Property
Manager and aggregate these property budgets into the Company's overall budget;
(L) review and analyze on-going financial information pertaining to each
Property, each Real Estate Related Security and the overall portfolio of
Properties and Real Estate Related Securities;
(M) if a transaction requires approval by the Board of Directors, deliver
to the Board of Directors all documents requested by them in their evaluation of
the proposed investment in the Property or the Real Estate Related Security;
(N) formulate and oversee the implementation of strategies for the
administration, promotion, management, operation, maintenance, improvement,
financing and refinancing, marketing, leasing, and disposition of Properties on
an overall portfolio basis;
(O) subject to the provisions of Sections 3(m) and 4 hereof, (i) locate,
analyze and select potential investments in Properties, (ii) structure and
negotiate the terms and conditions of transactions pursuant to which investment
in Properties will be made; (iii) make investments in Properties 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, Property;
(v) enter into leases, supply agreements and other income-producing contracts
relating to third party use of any Property and other assets of the Company;
(vi) enter into service contracts for any Property, including oversight of
Affiliated companies that perform property management services for the Company
and the Partnership; (vii) if applicable, oversee a non-affiliated Property
Manager and any other non-affiliated Persons who perform services for the
Company; and (viii) to the extent necessary, perform all other operational
functions for the maintenance and administration of such Property;
(P) obtain the prior approval of the Board, any particular Directors
specified by the Board or any committee of the Board, as the case may be, for
any and all investments in Properties;
(Q) negotiate on behalf of the Company and the Partnership with banks or
lenders for loans to be made to the Company, and negotiate on behalf of the
Company and the Partnership with investment banking firms and broker-dealers or
negotiate private sales of Shares and other securities or obtain loans
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for the Company and the Partnership, but in no event in such a way so that the
Advisor shall be acting as broker-dealer or underwriter; 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 or the
Partnership;
(R) on behalf of the Company and the Partnership, maintain, with respect to
any Property and to the extent available, title insurance or other assurance of
title and customary fire, casualty and public liability insurance;
(S) 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 and the Partnership in Properties or
Real Estate Related Securities;
(T) from time to time, or at any time reasonably requested by the Board,
provide information or make reports to the Board related to its performance of
services to the Company and the Partnership under this Agreement;
(U) from time to time, or at any time reasonably requested by the Board,
make reports to the Board of the investment opportunities it has presented to
other Advisor-sponsored programs or that it has pursued directly or through an
Affiliate;
(V) provide the Company and the Partnership with all necessary cash
management services;
(W) deliver to or maintain on behalf of the Company copies of all
appraisals obtained in connection with the investments in Properties and all
valuations of Real Estate Related Securities as may be required to be obtained
by the Board;
(X) notify the Board of all proposed material transactions before they are
completed;
(Y) at the direction of Company management, prepare the Company's periodic
reports and other filings made under the Securities Exchange Act of 1934, as
amended, and the Company's Post-Effective Amendments to the Registration
Statement as well as all related prospectuses, prospectus supplements and
supplemental sales literature and assist in connection with the filing of such
documents with the appropriate regulatory authorities;
(Z) supervise the preparation and filing and distribution of returns and
reports to governmental agencies and to investors and act on behalf of the
Company in connection with investor relations;
(AA) effect any private placements of Shares or other interests in
Properties as may be approved by the Board;
(BB) establish and maintain bank accounts on behalf of the Company and the
Partnership pursuant to Section 5 of this Agreement;
(CC) provide office space, equipment and personnel as required for the
performance of the foregoing services as the Advisor; and
(DD) do all things it reasonably deems necessary to assure its ability to
render the services described in this Agreement.
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4. MODIFICATION OR REVOCATION OF AUTHORITY OF ADVISOR. The Board may, at
any time upon the giving of notice to the Advisor, modify or revoke the
authority or approvals set forth in Section 3; 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 and the Partnership prior to the date of receipt by the
Advisor of such notification.
5. BANK ACCOUNTS. At the direction of the Board of Directors, the Advisor
may establish and maintain one or more bank accounts in its own name for the
account of the Company and the Partnership or in the name of the Company and the
Partnership 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
and the Partnership, under such terms and conditions as the Board 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 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 and the
Partnership.
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 (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 or the Partnership, its Shares or its other
securities, or otherwise not be permitted by the Articles of Incorporation or
Bylaws of the Company, 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 directors, officers, employees and stockholders, and stockholders,
directors and officers of the Advisor's Affiliates shall not be liable to the
Company, the Partnership, the Board or to the Stockholders for any act or
omission by the Advisor, its directors, officers, employees or stockholders, or
stockholders, directors or officers of the Advisor's Affiliates taken or omitted
to be taken in the performance of their duties under this Agreement except as
provided in Sections 19 and 20 of this Agreement.
8. FEES.
(A) REAL ESTATE COMMISSION. The Advisor or its Affiliates shall receive as
compensation for services rendered in connection with the investigation,
selection and acquisition of Properties (by purchase, investment or exchange) a
real estate commission payable by the Company (the "REAL ESTATE COMMISSION").
The total Real Estate Commission paid to the Advisor or its Affiliates for
services provided by the Advisor, its Affiliates or sub-contractors thereof
shall not exceed (i) three percent (3%) of the Contract Purchase Price of a
Property acquired directly or indirectly by the Company, and (ii) four percent
(4%) of the Total Development Cost of Properties developed by or on behalf of
the Company. At the Advisor's discretion, a portion of the Real Estate
Commission may be paid to third-party developers for services rendered. Real
Estate Commissions shall be payable on the acquisition of a specific Property,
on the acquisition of a portfolio of Properties through a purchase of assets,
controlling securities or by joint venture, by a merger or similar business
combination or other comparable transaction, or on the
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completion of development of a Property or Properties for the Company. However,
the total of all Real Estate Commissions and Acquisition Expenses payable with
respect to any Properties shall not exceed six percent (6%) of the Contract
Purchase Price or the Total Development Cost (as applicable) of such Properties
unless fees in excess of such amount are approved by a majority of the Board of
Directors, including a majority of the Independent Directors.
(B) ASSET MANAGEMENT FEE. Subject to the overall limitations contained
below in this Section 8(b), commencing on the Effective Date, the Advisor shall
be paid a monthly fee for the services rendered in connection with the
management of the Company's assets (the "ASSET MANAGEMENT FEE") in an amount
equal to (i) for Properties, one-twelfth of one percent (1%) of the Average
Invested Assets calculated as of the close of business on the last day of each
preceding month and (ii) for Real Estate Related Securities, one-twelfth of one
percent (1%) of the value of the Real Estate Related Securities under the
Advisor's management calculated as of the close of business on the last day of
each preceding month; provided, however, that the Company's obligation to pay
the Asset Management Fee shall be subject to the Stockholders receiving
annualized Distributions in an amount equal to five percent (5%) per annum of
Invested Capital (as such term is defined in the Articles of Incorporation). The
Asset Management Fee shall be payable by the Company in cash or in Shares at the
election of the Advisor in whole or in part, from time to time, by the Advisor
(without interest); provided, however, that the Company may object to the
Advisor's election and refuse to pay the Advisor in Shares if such payment would
result in a conflict with any provision of the Articles of Incorporation. If the
Advisor elects to receive the Asset Management Fee in the form of Shares and
such election does not conflict with any provision of the Articles of
Incorporation, then the Shares shall be valued 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 and the Company is still in its Offering Stage at such
time, the Advisor will estimate the per share value of the Shares at a price per
share equal the most recent price paid to acquire a Share (excluding any Shares
sold at purchase price discounts for certain categories of purchasers). If the
Shares are not Listed and the Offering Stage has been completed for twelve (12)
months at such time, the Shares shall be valued at a price per share equal the
published annual estimated value of the shares as determined by the Advisor
based upon the Appraised Value of the Properties on the date of election.
(C) DISPOSITION FEE. If the Advisor or an Affiliate of the Advisor 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 at closing a disposition fee equal
to the lessor of (i) one and three quarters percent (1.75%) of the Contract
Sales Price of such Property or Properties, or (ii) fifty percent (50%) of a
Competitive Real Estate Commission given the circumstances surrounding the sale
(the "DISPOSITION FEE"). In each case in which a Disposition Fee may be payable,
the precise amount of the fee within the limits set forth in the preceding
sentence shall be determined by the Board, including a majority of the
Independent Directors, based upon the extent of the services provided by the
Advisor or its Affiliate and market norms for the services provided.
Notwithstanding anything to the contrary herein, no Disposition Fee shall be
payable to the Advisor or its Affiliate for Property Sales if such Sales
involve the Company selling all or substantially all of its Properties in one
or more transactions designed to effectuate a business combination transaction
(as opposed to a Company liquidation, in which case the Disposition Fee would be
payable if the Advisor or an Affiliate provides a substantial amount of services
as provided above). Any Disposition Fee payable under this section may be paid
in addition to real estate commissions paid to non-Affiliates, provided that the
total real estate commissions (including such Disposition Fee) paid to all
Persons by the Company for each Property shall not exceed an amount equal to the
lesser of (i) six percent (6%) of the Contract Sales Price of the Property or
(ii) the Competitive Real Estate Commission for the Property.
(D) PROPERTY MANAGEMENT FEE; LEASE FEE. Either the Advisor, an Affiliate of
the Advisor or a non-affiliated third party as the Property Manager shall
receive a monthly property management fee equal to four percent (4%) of the
monthly Gross Income from each Property managed by such Property Manager (the
"PROPERTY MANAGEMENT FEE"). In addition, the Advisor, an Affiliate of the
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Advisor or a non-affiliated third party as the Property Manager may receive a
separate fee for any leasing activities in an amount not to exceed the fee
customarily charged in arm's length transactions by others rendering similar
services in the same geographic area for similar properties, as determined by a
survey of brokers and agents in such area (the "LEASE FEE"). The Lease Fee is
generally expected to range from three percent (3%) to eight percent (8%) of the
gross revenues generated during the initial term of the lease. In addition to
the above Property Management Fee and Lease Fee, for each Property managed
directly by a non-affiliated Property Manager but where an Affiliate of the
Advisor has oversight responsibility over such non-affiliated Property Manager,
the Company will pay such Affiliate of the Advisor a monthly oversight fee of up
to one percent (1%) of the Gross Income from the Property.
(E) CHANGES TO FEE STRUCTURE. In the event of a Listing, the Company and
the Advisor shall negotiate in good faith to establish a fee structure
appropriate for a perpetual-life entity.
9. EXPENSES.
(A) REIMBURSABLE EXPENSES. In addition to the compensation paid to the
Advisor pursuant to Section 8 hereof, the Company or the Partnership shall pay
directly or reimburse the Advisor for all of the expenses paid or incurred by
the Advisor (to the extent not reimbursable by another party, such as the dealer
manager) in connection with the services it provides to the Company and the
Partnership pursuant to this Agreement, including, but not limited to:
(i) the Organizational and Offering Expenses; provided, however, that
within sixty (60) days after the end of the month in which an Offering
terminates, the Advisor shall reimburse the Company to the extent (i) Capped O&O
Expenses borne by the Company exceed the maximum amount permitted pursuant to
the prospectus for the Offering and (ii) Organizational and Offering Expenses
borne by the Company exceed fifteen percent (15%) of the Gross Offering Proceeds
raised in a completed Offering;
(ii) Real Estate Commissions and Acquisition Expenses incurred in
connection with the selection and acquisition of Properties, subject to the
aggregate six percent (6%) cap on Real Estate Commissions and Acquisition
Expenses set forth in Section 8(a) above;
(iii) the actual cost of goods and services used by the Company and
obtained from entities not affiliated with the Advisor, other than Acquisition
Expenses, including brokerage fees paid in connection with the purchase and sale
of Real Estate Related Securities;
(iv) interest and other costs for borrowed money, including discounts,
points and other similar fees;
(v) taxes and assessments on income of the Company or any of the
Properties;
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(vi) costs associated with insurance required in connection with the
business of the Company or by the Board;
(vii) expenses of managing and operating Properties owned by the
Company, whether payable to an Affiliate of the Company or a non-affiliated
Person;
(viii) all compensation and expenses payable to the Independent
Directors and all expenses payable to the non-Independent Directors in
connection with their services to the Company and the Stockholders and their
attendance at meetings of the Directors and the Stockholders;
(ix) expenses associated with Listing or with the issuance and
distribution of securities other than the Shares, such as selling commissions
and fees, advertising expenses, taxes, legal and accounting fees, listing and
registration fees;
(x) expenses connected with payments of Distributions in cash or
otherwise made or caused to be made by the Company to the Stockholders;
(xi) expenses of organizing, redomesticating, merging, liquidating or
dissolving the Company or of amending the Articles of Incorporation or the
Bylaws;
(xii) expenses of maintaining communications with Stockholders or
their financial advisors, 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 (a) 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 (b) the Company's allocable share of other
overhead of the Advisor such as rent and utilities);
(xiv) transfer agent and registrar's fees and charges paid to third
parties;
(xv) expenses associated with the disposition of Properties,
including, subject to Section 8(c), real estate commissions;
(xvi) audit, accounting, legal and other professional fees; and
(xvii) all other costs and expenses in any way relating to the
operations of the Company or the Partnership or the business of the Company or
the Partnership (other than any fees payable to the Advisor or its Affiliates).
(B) OTHER SERVICES. Should the Board request that the Advisor, any
Affiliate of the Advisor or any director, officer or employee thereof render
services for the Company and the Partnership other than set forth in Section 3,
such additional services, if the Advisor elects to perform them, shall be
separately compensated at such rates and in such amounts as are agreed by the
Advisor and the Board, including a majority of the Independent Directors,
subject to the limitations contained in the Articles of Incorporation, shall not
exceed an amount that would be paid to nonaffiliated third parties for similar
services, and shall not be deemed to be services pursuant to the terms of this
Agreement.
(C) TIMING OF AND LIMITATIONS ON REIMBURSEMENTS.
(i) Expenses incurred by the Advisor on behalf of the Company and the
Partnership and payable pursuant to this Section 9 shall be reimbursed no less
than monthly to the Advisor. The
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Advisor shall prepare a statement documenting the expenses of the Company and
the Partnership during each quarter, and shall deliver such statement to the
Company and the Partnership within forty-five (45) days after the end of each
quarter.
(ii) Notwithstanding anything else in this Section 9 to the contrary,
the expenses enumerated in this Section 9 shall not become reimbursable out of
the proceeds of an Offering to the Advisor unless and until the Company has
raised the minimum offering amount, if any, as provided in the prospectus for
the Offering.
(iii) The Company shall not reimburse the Advisor at the end of any
fiscal quarter Operating Expenses that, in the four consecutive fiscal quarters
then ended (the "EXPENSE YEAR") exceed (the "EXCESS AMOUNT") the 2%/25%
Guidelines for such year unless a majority of the Independent Directors
determines that such excess was justified, based on unusual and nonrecurring
factors which a majority of the Independent Directors deems sufficient. If a
majority of the Independent Directors does not approve such excess as being so
justified, any Excess Amount paid to the Advisor during a fiscal quarter shall
be repaid to the Company. If a majority of the Independent Directors determines
such excess was justified, then within sixty (60) days after the end of any
fiscal quarter of the Company for which total reimbursed Operating Expenses for
the Expense Year exceed the 2%/25% Guidelines, the Advisor, at the direction of
a majority of the Independent Directors, shall send 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 expenses were
justified. The Company will ensure that such determination will be reflected in
the minutes of the meetings of the Board of Directors. All figures used in the
foregoing computation shall be determined in accordance with generally accepted
accounting principles applied on a consistent basis.
(iv) The foregoing reimbursements of expenses, as limited by this
Agreement, will be made regardless of whether any cash distributions are made to
the Stockholders.
10. STATEMENTS. The Advisor shall furnish to the Company not later than the
thirtieth (30th) day following the end of each Fiscal Year, a statement showing
a computation of the fees or other compensation payable to the Advisor or an
Affiliate of the Advisor with respect to such Fiscal Year under Sections 8 and 9
hereof. The final settlement of compensation payable under Sections 8 and 9
hereof for each Fiscal Year shall be subject to adjustments in accordance with,
and upon completion of, the annual audit of the Company's financial statements.
11. INTERNALIZATION OF THE ADVISOR. In the event that the Company's assets
and income are, in the view of the Board of Directors, including a majority of
the Independent Directors, of sufficient size such that internalizing the
management functions by the Advisor and the Property Manager is in the best
interests of the Stockholders, the compensation payable to the Advisor upon such
internalization shall be agreed upon by the Independent Directors and the
Advisor.
12. OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall prevent
the Advisor 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
partnership, corporation, firm, individual, trust or association. The Advisor
may, with respect to any investment in which the Company or the Partnership is a
participant, also render advice and service to each and every 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
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the Partnership and its obligations to or its interest in any other partnership,
corporation, firm, individual, trust or association.
13. INFORMATION FURNISHED TO THE ADVISOR. The Board of Directors will keep
the Advisor informed concerning the investment and financing policies of the
Company. The Board of Directors shall notify the Advisor promptly of its
intention to make any investments or to sell or dispose of any existing
investments. Upon request of the Advisor, the Company shall furnish the Advisor
with a certified copy of any Company financial statements, a signed copy of each
report prepared by independent certified public accountants, and such other
information with regard to its affairs as the Advisor may reasonably request.
14. RELATIONSHIP OF ADVISOR AND COMPANY. The Company, the Partnership 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.
15. TERM; RENEWAL OF AGREEMENT. This Agreement shall continue in force
until the first anniversary of the Effective Date, subject to an unlimited
number of successive one-year renewals upon mutual consent of the parties. The
Company, acting through the Board, will 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.
16. TERMINATION.
(A) BY EITHER PARTY. This Agreement may be terminated upon sixty (60) days
written notice without cause or penalty, by either party (if by the Company,
only upon approval of a majority of the Independent Directors).
(B) BY THE COMPANY. At the sole option of the Company, this Agreement shall
be terminated immediately, subject to the thirty (30)-day cure period for a "for
Cause" termination due to a material breach of this Agreement, upon written
notice of termination from the Board of Directors to the Advisor if any of the
following events occur:
(i) For Cause;
(ii) A court of competent jurisdiction enters a decree or order for
relief in respect of the Advisor in any involuntary case under the applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Advisor or for any substantial part of its property or
orders the winding up or liquidation of the Advisor's affairs; or
(iii) The Advisor commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, or consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Advisor or for any substantial part of its property, or makes any general
assignment for the benefit of creditors, or fails generally to pay its debts as
they become due.
The Advisor agrees that if any of the events specified in subsections (ii)
or (iii) of this Section 16(b) occur, it will give written notice thereof to the
Company within seven (7) days after the occurrence of such event.
-15-
(C) BY THE ADVISOR. At the sole option of the Advisor, this Agreement shall
be terminated immediately, subject to the thirty (30)-day cure period for a
"Good Reason" termination due to a material breach of this Agreement, upon
written notice of termination from the Advisor to the Company that the Advisor
has Good Reason to terminate this Agreement.
(D) SURVIVAL. The provisions of Sections 18 through 31 shall survive
termination of this Agreement.
17. ASSIGNMENT. This Agreement shall not be assigned by the Advisor to a
non-Affiliate. This Agreement may be assigned by the Advisor to an Affiliate
with the approval of the Board, including a majority of the Independent
Directors. Notwithstanding the foregoing, 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 or
the Partnership without the consent of the Advisor, except in the case of an
assignment by the Company or the Partnership to a corporation or other
organization which is a successor to all of the assets, rights and obligations
of the Company or the Partnership, as the case may be, in which case such
successor organization shall be bound hereunder and by the terms of said
assignment in the same manner as the Company and the Partnership is bound by
this Agreement.
18. PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION. Payments to the
Advisor pursuant to this Section 18 shall be subject to the 2%/25% Guidelines to
the extent applicable.
(A) After the expiration or termination of this Agreement, the Advisor
shall not be entitled to compensation for further services hereunder except it
shall be entitled to receive from the Company within thirty (30) days after the
effective date of such termination all unpaid reimbursements of expenses and all
earned but unpaid fees payable to the Advisor prior to termination of this
Agreement; and
(B) 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 Real
Estate Related Securities, and documents of the Company then in the custody of
the Advisor; and
(iv) cooperate with the Company to provide an orderly management
transition.
19. INDEMNIFICATION BY THE COMPANY.
(A) 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, provided that
the Company shall not indemnify and hold harmless the Advisor or its Affiliates
unless:
(i) the Advisor or its Affiliates have determined, in good faith,
that the course of conduct which caused the loss or liability
was in the best interests of the Company;
(ii) the Advisor or its Affiliates were acting on behalf of or
performing services for the Company;
(iii) such liability or loss was not the result of negligence or
misconduct by the Advisor or its Affiliates; and
(iv) such indemnification or agreement to hold harmless is
recoverable only out of Company's net assets and not from its
stockholders.
The obligation of the Company to indemnify or hold harmless the Advisor and its
Affiliates shall also be subject to any limitations imposed by Maryland law.
-16-
(B) The Company may advance amounts to persons entitled to indemnification
hereunder for legal and other expenses and 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 by the
indemnified party for or on behalf of the Company; (ii) the legal action is
initiated by a third party and a court of competent jurisdiction specifically
approves such advancement; and (iii) the indemnified party receiving such
advances undertakes to repay the advanced funds to the Company, together with
the applicable legal rate of interest thereon, in which such party would not be
entitled to indemnification.
(C) Notwithstanding the foregoing, the Advisor shall not be entitled to
indemnification or be held harmless pursuant to this Section 19 for any activity
which the Advisor shall be required to indemnify or hold harmless the Company
pursuant to Section 20. Any indemnification of the Advisor may be made only out
of the net assets of the Company and not from the Stockholders.
20. 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, willful misfeasance, misconduct, or reckless disregard of its duties, but
the Advisor shall not be held responsible for any action of the Board in
following or declining to follow advice or recommendation given by the Advisor.
21. FIDELITY BOND. The Advisor shall not be required to obtain or maintain
a fidelity bond in connection with the performance of its services hereunder.
22. NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is 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:
To the Board and to the Company: NNN Healthcare/Office REIT, Inc.
Xxxxx 000
0000 X. Xxxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Attention: Chief Executive Officer
To the Partnership: NNN Healthcare/Office REIT Holdings, L.P.
Suite 200
0000 X. Xxxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Attention: Chief Executive Officer of
NNN Healthcare/Office REIT, Inc.,
its General Partner
To the Advisor: NNN Healthcare/Office REIT Advisor, LLC
Xxxxx 000
0000 X. Xxxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Attention: Chief Executive Officer
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 22.
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23. AMENDMENTS. This Agreement shall not be changed, modified, terminated,
or discharged, in whole or in part, except by an instrument in writing signed by
each of the parties hereto, or their respective successors or assignees.
24. 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.
25. CONSTRUCTION. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Maryland.
26. 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.
27. INDULGENCES, NOT 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.
28. 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.
29. 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.
30. 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
the counterparts hereof, taken together, bear the signatures of all of the
parties reflected hereon as the signatories.
31. NAME. NNN Healthcare/Office REIT Advisor, LLC has a proprietary
interest in the name "NNN." Accordingly, and in recognition of this right, if at
any time the Company or the Partnership ceases to retain NNN Healthcare/Office
REIT Advisor, LLC or an Affiliate thereof to perform the services of the Advisor
under this Agreement, the Company or the Partnership, as the case may be, will,
promptly after receipt of written request from NNN Healthcare/Office REIT
Advisor, LLC, cease to conduct business under or use the name "NNN" or any
variation or derivative thereof and the Company and the Partnership shall each
use its best efforts to change their respective names (and the names of any of
their Affiliates) to a name that does not contain the name "NNN" 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, the parties acknowledge
and agree that the Advisor or one or more of its Affiliates has in the past and
may in the
-18-
future organize, sponsor or otherwise permit to exist other investment vehicles
(including vehicles for investment in real estate) and financial and service
organizations having "NNN" 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.
32. RIGHT OF FIRST REFUSAL. In the event that Triple Net identifies an
opportunity to make an investment in one or more office buildings or other
facilities for which greater than fifty percent (50%) of the gross rentable
space at such office buildings or other facilities is leased to, or is
reasonably expected to be leased to, one or more medical or healthcare-related
tenants, either directly or indirectly through an Affiliate or in a joint
venture or other co-ownership arrangement, for itself or for any other Triple
Net-sponsored or managed program, then Triple Net agrees that it shall provide
the Company with the first opportunity to purchase such investment and that it
shall provide all necessary information to the Advisor in order to enable the
Board of Directors to determine whether to proceed with such investment. The
Advisor shall present such information to the Board of Directors within three
(3) business days of receipt from Triple Net. In the event that the Board of
Directors does not affirmatively authorize the Advisor to proceed with the
investment on behalf of the Company within seven (7) days of receipt of such
information from the Advisor, then Triple Net may proceed with the investment
opportunity for its own account or offer the investment opportunity to any other
person or entity.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the day and year first above written.
NNN HEALTHCARE/OFFICE REIT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NNN HEALTHCARE/OFFICE REIT HOLDINGS, L.P.
By: NNN Healthcare/Office REIT, Inc.,
its General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NNN HEALTHCARE/OFFICE REIT ADVISOR, LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TRIPLE NET PROPERTIES, LLC
(solely for purposes of Section 32 of
this Agreement)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO ADVISORY AGREEMENT]
