EXHIBIT 10.3
ADVISORY AGREEMENT
Among
XXXXX REIT PROPERTIES, L.P.,
XXXXX ADVISORS LIMITED PARTNERSHIP,
and
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
May 24, 2004
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS..........................................................1
ARTICLE 2 APPOINTMENT..........................................................5
ARTICLE 3 DUTIES OF THE ADVISOR................................................5
3.01 Organizational and Offering Services...............................5
3.02 Acquisition Services...............................................6
3.03 Asset Management Services..........................................7
3.04 Shareholder Services..............................................10
ARTICLE 4 AUTHORITY OF ADVISOR................................................11
4.01 General...........................................................11
4.02 Powers of the Advisor.............................................11
4.03 Approval by Directors.............................................11
ARTICLE 6 RECORDS AND FINANCIAL STATEMENTS....................................12
ARTICLE 7 LIMITATION ON ACTIVITIES............................................13
ARTICLE 8 RELATIONSHIP WITH DIRECTORS AND OFFICERS............................14
ARTICLE 9 FEES................................................................14
9.01 Acquisition Fees..................................................14
9.02 Asset Management Fees.............................................14
ARTICLE 10 EXPENSES...........................................................15
10.01 General...........................................................15
10.02 Reimbursement to Advisor..........................................17
10.03 Reimbursement to Company..........................................17
ARTICLE 11 OTHER SERVICES.....................................................18
ARTICLE 12 RELATIONSHIP OF ADVISOR AND COMPANY; OTHER ACTIVITIES OF
THE ADVISOR...................................................................18
12.01 Relationship......................................................18
12.02 Time Commitment...................................................19
12.03 Investment Opportunities and Allocation...........................19
ARTICLE 13 THE XXXXX NAME.....................................................20
ARTICLE 14 TERM AND TERMINATION OF THE AGREEMENT..............................21
14.01 Term..............................................................21
14.02 Termination by Either Party.......................................21
14.03 Termination by the Company........................................21
14.04 Termination by the Advisor........................................21
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14.05 Payments on Termination and Survival of Certain Rights
and Obligations...................................................22
14.06 Repurchase of Units...............................................23
ARTICLE 15 ASSIGNMENT.........................................................23
ARTICLE 16 INDEMNIFICATION AND LIMITATION OF LIABILITY........................24
16.01 Indemnification by the Company....................................24
16.02 Indemnification by the Advisor....................................24
16.03 Advisor's Liability...............................................25
ARTICLE 17 MISCELLANEOUS......................................................26
17.01 Notices........................................................26
17.02 Modification...................................................26
17.03 Severability...................................................27
17.04 Construction...................................................27
17.05 Entire Agreement...............................................27
17.06 Waiver.........................................................27
17.07 Gender.........................................................28
17.08 Titles Not to Affect Interpretation............................28
17.09 Counterparts...................................................28
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ADVISORY AGREEMENT
This Advisory Agreement, dated as of May 24, 2004, is among Xxxxx REIT
Properties, L.P., a Delaware limited partnership, Xxxxx Advisors Limited
Partnership, a Texas limited partnership and Xxxxx Real Estate Investment Trust,
Inc., a Maryland corporation (the "Agreement").
W I T N E S S E T H
WHEREAS, the Company (as hereinafter defined) desires to avail itself of
the knowledge, experience, sources of information, advice, assistance and
certain facilities available to the Advisor (hereinafter defined) and to have
the Advisor undertake the duties and responsibilities hereinafter set forth
herein on the terms set forth in this Agreement; and
WHEREAS, the Advisor is willing to undertake to render such services 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:
ARTICLE 1
DEFINITIONS
The following defined terms used in this Advisory Agreement shall have the
meanings specified below:
"Acquisition Expenses" has the meaning set forth in the Articles of
Incorporation.
"Advisor" means (i) Xxxxx Advisors Limited Partnership, a Texas limited
partnership, or (ii) any successor advisor to the Company.
"Affiliate" has the meaning set forth in the Articles of Incorporation.
For the purposes of this Agreement, the Advisor shall not be deemed to be an
Affiliate of the Company, and vice versa.
"Articles of Incorporation" means the Articles of Incorporation of the
General Partner, as amended from time to time.
"Asset" or "Assets" means any and all real estate investments (real,
personal or otherwise), tangible or intangible, owned or held by, or for the
account of, the Company, whether directly or indirectly through another entity
or entities, including interests in any Person or in joint ventures which
directly or indirectly own real estate investments.
"Board of Directors" means the Board Directors of the General Partner.
"Bylaws" means the bylaws of the General Partner, as amended from time
to time.
"Cash Amount" has the meaning set forth in the Limited Partnership
Agreement.
"Code" means the 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" means Xxxxx REIT Properties, L.P., a Delaware limited
partnership. Within the context of discussions of the operations, business and
administration of the Company, the term "Company" shall mean, collectively,
Xxxxx REIT Properties, L. P. and the General Partner for the purposes of this
Agreement.
"Director" means a member of the Board of Directors of the General
Partner.
"General Partner" means Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation and general partner of the Company.
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"Gross Proceeds" has the meaning set forth in the Articles of
Incorporation.
"Xxxxx" means Xxxxx Interests Limited Partnership and its Affiliates.
"Independent Director" has the meaning set forth in the Articles of
Incorporation.
"Initial Asset Value" means (i) in the case of an Asset other than a
mortgage loan, the gross purchase price of real estate investments acquired
directly by the Company, including any debt attributable to such investments, or
the pro rata share of the gross asset value of real estate investments held by
entities in which the Company invests, and (ii) in the case of a mortgage loan,
the total amount of the funds advanced.
"Limited Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement of Xxxxx REIT Properties, L.P., as the same may be amended
and restated from time to time.
"Managing Dealer" means Xxxxx Real Estate Securities, Inc., a Delaware
corporation, or such other entity selected by the Board of Directors to act as
the managing dealer for the Offering.
"Offering" means the public offering of Shares pursuant to the Prospectus.
"Operating Expenses" has the meaning set forth in the Articles of
Incorporation.
"Organizational and Offering Expenses" has the meaning set forth in the
Articles of Incorporation.
"Participation Interest" has the meaning set forth in the Limited
Partnership Agreement.
"Person" means an individual, corporation, partnership, estate, trust, 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.
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"Property Manager" means Xxxxx Interests Limited Partnership, a Texas
limited partnership.
"Property Management and Leasing Agreement" means that certain Property
Management and Leasing Agreement between the Company and the Property Manager.
"Prospectus" means the General Partner's final prospectus within the
meaning of Section 2(10) of the Securities Act of 1933, as amended.
"REIT" means a "real estate investment trust" under Sections 856 through
860 of the Code.
"REIT Shares Amount" has the meaning set forth in the Limited Partnership
Agreement.
"Securities" means any class or series of units or shares of the Company
or the General Partner, including common shares or preferred units or shares and
any other evidences of equity or beneficial or other interests, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in, temporary or interim certificates for, receipts
for, guarantees of, or warrants, options or rights to subscribe to, purchase or
acquire, any of the foregoing.
"Shares" means shares of common stock of the General Partner, par value
$.001 per share.
"Shareholders" means the registered holders of the outstanding Shares.
"Termination Date" means the date of termination of this Agreement.
"2%/25% Guidelines" has the meaning set forth in the Articles of
Incorporation.
"Units" has the meaning set forth in the Limited Partnership Agreement.
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ARTICLE 2
APPOINTMENT
The Company hereby appoints the Advisor to serve as its advisor on the
terms and conditions set forth in this Agreement, and the Advisor hereby accepts
such appointment.
ARTICLE 3
DUTIES OF THE ADVISOR
The Advisor is responsible for managing, operating, directing and
supervising the operations and administration of the Company and its Assets. The
Advisor shall, either directly or by engaging an Affiliate or third party,
perform the following duties:
3.01 Organizational and Offering Services. The Advisor shall manage and
supervise:
(i) Development of the product offering, including the determination
of the specific terms of the Securities to be offered by the General
Partner and/or the Company;
(ii) Formation and organization of the Company, preparation of all
offering and related documents, and obtaining of all required regulatory
approvals of such documents;
(iii) Along with the Managing Dealer, approval of the participating
broker dealers and negotiation of the related selling agreements;
(iv) Coordination of the due diligence process relating to
participating broker dealers and their review of the Prospectus and other
Offering and Company documents;
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(v) Preparation and approval of all marketing materials contemplated
to be used by the Managing Dealer or others in the Offering of the General
Partner's Securities;
(vi) Along with the Managing Dealer, negotiation and coordination
with the transfer agent for the receipt, collection, processing and
acceptance of subscription agreements, commissions, and other
administrative support functions;
(vii) Creation and implementation of various technology and
electronic communications related to the Offering of the General Partner's
Securities; and
(viii) All other services related to organization of the Company or
the Offering, whether performed and incurred by the Advisor or its
Affiliates.
3.02 Acquisition Services.
(i) Serve as the Company's investment and financial advisor and
provide relevant market research and economic and statistical data in
connection with the Company's assets and investment objectives and
policies;
(ii) Subject to Section 4 hereof and the investment objectives and
policies of the Company: (a) locate, analyze and select potential
investments; (b) structure and negotiate the terms and conditions of
transactions pursuant to which investments in Assets will be made; (c)
acquire Assets on behalf of the Company; and (d) arrange for financing
related to acquisitions of Assets;
(iii) Perform due diligence on prospective investments and create
due diligence reports summarizing the results of such work;
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(iv) Prepare reports regarding prospective investments which include
recommendations and supporting documentation necessary for the Directors
to evaluate the proposed investments;
(v) Obtain reports (which may be prepared by the Advisor or its
Affiliates), where appropriate, concerning the value of contemplated
investments of the Company; and
(vi) Negotiate and execute approved investments and other
transactions.
3.03 Asset Management Services.
(i) Real Estate Services:
(a) 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, lenders,
technical advisors, attorneys, brokers, underwriters, corporate
fiduciaries, escrow agents, depositaries, custodians, agents for
collection, insurers, insurance agents, developers, construction
companies and any and all Persons acting in any other capacity
deemed by the Advisor necessary or desirable for the performance of
any of the foregoing services;
(b) Negotiate and service the Company's debt facilities and
other financings;
(c) Monitor applicable markets and obtain reports (which may
be prepared by the Advisor or its Affiliates) where appropriate,
concerning the value of investments of the Company;
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(d) Monitor and evaluate the performance of investments of the
Company; provide daily management services to the Company and
perform and supervise the various management and operational
functions related to the Company's investments;
(e) Coordinate with the Property Manager on its duties under
the Property Management and Leasing Agreement and assist in
obtaining all necessary approvals of major property transactions as
governed by the Property Management and Leasing Agreement;
(f) Coordinate and manage relationships between the Company
and any joint venture partners;
(g) Consult with the officers and Directors of the General
Partner and provide assistance with the evaluation and approval of
potential property dispositions, sales or refinancings;
(ii) Accounting and Other Administrative Services:
(a) Manage and perform the various administrative functions
necessary for the management of the day-to-day operations of the
Company;
(b) From time-to-time, or at any time reasonably requested by
the Directors, make reports to the Directors on the Advisor's
performance of services to the Company under this Agreement;
(c) Coordinate with the Company's independent accountants and
auditors to prepare and deliver to the General Partner's audit
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committee an annual report covering the Advisor's compliance with
certain material aspects of this Advisory Agreement;
(d) Provide or arrange for administrative services and items,
legal and other services, office space, office furnishings,
personnel and other overhead items necessary and incidental to the
Company's business and operations;
(e) Provide financial and operational planning services and
portfolio management functions;
(f) Maintain accounting data and any other information
requested concerning the activities of the Company as shall be
required to prepare and to file all periodic financial reports and
returns required to be filed with the Securities and Exchange
Commission and any other regulatory agency, including annual
financial statements;
(g) Maintain all appropriate books and records of the Company;
(h) Provide tax and compliance services and coordinate with
appropriate third parties, including independent accountants and
other consultants, on related tax matters;
(i) Supervise the performance of such ministerial and
administrative functions as may be necessary in connection with the
daily operations of the Assets;
(j) Provide the Company with all necessary cash management
services;
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(k) Manage and coordinate with the transfer agent the
quarterly dividend process and payments to shareholders;
(l) Consult with the officers and Directors of the General
Partner and assist the Directors in evaluating and obtaining
adequate insurance coverage based upon risk management
determinations;
(m) Provide the officers and Directors of the General Partner
with timely updates related to the overall regulatory environment
affecting the Company, as well as managing compliance with such
matters, including but not limited to compliance with the
Xxxxxxxx-Xxxxx Act of 2002;
(n) Consult with the officers and Directors of the General
Partner and the Board of Directors relating to the corporate
governance structure and appropriate policies and procedures related
thereto; and
(o) Perform all reporting, record keeping, internal controls
and similar matters in a manner to allow the General Partner to
comply with applicable law including the Xxxxxxxx-Xxxxx Act.
3.04 Shareholder Services.
(i) Manage communications with shareholders, including answering
phone calls, preparing and sending written and electronic reports and
other communications; and
(ii) Establish technology infrastructure to assist in providing
shareholder support and service.
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ARTICLE 4
AUTHORITY OF ADVISOR
4.01 General. All rights and powers to manage and control the day-to-day
business and affairs of the Company shall be vested in the Advisor. The Advisor
shall have the power to delegate all or any part of its rights and powers to
manage and control the business and affairs of the Company to such officers,
employees, Affiliates, agents and representatives of the Advisor or the Company
as it may from time to time deem appropriate. Any authority delegated by the
Advisor to any other Person shall be subject to the limitations on the rights
and powers of the Advisor specifically set forth in this Agreement or the
Articles of Incorporation.
4.02 Powers of the Advisor. Subject to the express limitations set forth
in this Agreement, the power to direct the management, operation and policies of
the Company shall be vested in the Advisor, which shall have the power by itself
and shall be authorized and empowered on behalf and in the name of the Company
to carry out any and all of the objectives and purposes of the Company and to
perform all acts and enter into and perform all contracts and other undertakings
that it may in its sole discretion deem necessary, advisable or incidental
thereto to perform its obligations under this Agreement.
4.03 Approval by Directors.
(i) Notwithstanding the foregoing any investment in Assets,
including any acquisition of an Asset by the Company or any investment by
the Company in a joint venture, limited partnership or similar entity
owning real properties, will require the prior approval of the Board of
Directors. The Advisor will deliver to the Board of Directors all
documents required by it to properly evaluate the proposed investment.
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(ii) If the Articles of Incorporation require that a transaction be
approved by the Independent Directors, the Advisor will deliver to the
Independent Directors all documents required by them to properly evaluate
the proposed investment in the Asset. The prior approval of a majority of
the Independent Directors will be required for each transaction between
the Company and the Advisor or its Affiliates.
ARTICLE 5
BANK ACCOUNTS
The Advisor will maintain one or more bank accounts in the name of the
Company and will collect and deposit into any such account or accounts, and
disburse from any such account or accounts, any money on behalf of the Company.
Notwithstanding the foregoing, no funds shall be commingled with the funds of
the Advisor.
ARTICLE 6
RECORDS AND FINANCIAL STATEMENTS
Advisor, in the conduct of its responsibilities to the Company, shall
maintain adequate and separate books and records for the Company's operations in
accordance with United States generally accepted accounting principles ("GAAP"),
which shall be supported by sufficient documentation to ascertain that such
books and records are properly and accurately recorded. Such books and records
shall be the property of the Company. Such books and records shall include all
information necessary to calculate and audit the fees or reimbursements paid
under this Agreement. Advisor shall utilize procedures to attempt to ensure such
control over accounting and financial transactions as is reasonably required to
protect the Company's assets from theft, error or fraudulent activity. All
financial statements Advisor delivers to the Company shall be prepared on an
accrual basis in accordance with GAAP, except for special financial
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reports which by their nature require a deviation from GAAP. Advisor shall
maintain necessary liaison with the Company's independent accountants and shall
provide such accountants with such reports and other information as the Company
shall request.
ARTICLE 7
LIMITATION ON ACTIVITIES
Notwithstanding any provision in this Agreement to the contrary, the
Advisor shall not take any action which, in its sole judgment made in good
faith, would (i) adversely affect the ability of the General Partner to qualify
or continue to qualify to be taxed as a REIT, (ii) subject the Company or the
General Partner to regulation under the Investment Company Act of 1940, as
amended, (iii) violate any law, rule or regulation of any governmental body or
agency having jurisdiction over the Company, the General Partner or their
Securities, or (iv) violate the Articles of Incorporation or Bylaws. In the
event an action that would violate (i) through (iv) of the preceding sentence
but such action has been ordered by the Board of Directors acting on behalf of
the General Partner, the Advisor shall notify 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. Notwithstanding the foregoing, none of the Advisor, its Affiliates and
none of their managers, directors, officers, employees and equityholders, shall
be liable to the Company, the General Partner, the Board of Directors or the
Shareholders for any act or omission by such Persons or individuals, except as
provided in this Agreement.
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ARTICLE 8
RELATIONSHIP WITH DIRECTORS AND OFFICERS
Managers, Directors, officers and employees of the Advisor or any direct
or indirect Affiliate of the Advisor may serve as a Director and as officers of
the General Partner, except that no manager, director, officer or employee of
the Advisor or any of its Affiliates who also is a Director or officer of the
General Partner shall receive any compensation from the Company or General
Partner for serving as a Director or officer other than reasonable reimbursement
for travel and related expenses incurred in attending meetings of the Board of
Directors.
ARTICLE 9
FEES
9.01 Acquisition Fees. The Company will pay the Advisor in cash as
compensation for services described in Section 3.02 an acquisition fee of 0.50%
of the Initial Asset Value of each Asset acquired by the Advisor as well as
reimburse the Company for all out-of-pocket third-party expenses incurred by the
Advisor in connection with such services as required by Article 10. The amount
of such acquisition fees shall be subject to any limitations contained in the
Articles of Incorporation. The Advisor shall submit an invoice to the Company
following the closing or closings of each acquisition, accompanied by a
computation of the fee. The fee shall be payable within ten business days after
receipt of the invoice by the Company.
9.02 Asset Management Fees. The Company will pay the Advisor in cash as
compensation for services described in Section 3.03 an asset management fee in
accordance with this Section 9.02 as well as reimburse the Advisor for all
out-of-pocket third-party expenses incurred by the Advisor in connection with
such services as required by Article 10. Subject to any limitations contained in
the Articles of Incorporation, this asset management fee shall be
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earned monthly and the amount of this asset management fee payable by the
Company to the Advisor shall equal 0.0625% multiplied by the net equity invested
in real estate investments as of the end of the applicable month. The Advisor
shall submit a monthly invoice to the Company, accompanied by a computation of
the asset management fee for the applicable period. The asset management fee
shall be payable within ten business days after receipt of the invoice by the
Company.
ARTICLE 10
EXPENSES
10.01 General. In addition to the compensation paid to the Advisor
pursuant to Article 9 hereof, the Company shall pay directly or reimburse the
Advisor for all of the expenses paid or incurred by the Advisor or Affiliates in
connection with the services provided to the Company pursuant to this Agreement,
including, but not limited to:
(i) all Organizational and Offering Expenses; provided, however,
that (a) the Company shall have no obligation to reimburse such expenses
until the "minimum offering" (as such term is described in the Prospectus)
has been reached and (b) the Company shall at no time reimburse the
Advisor for any Organizational and Offering Expenses reimbursements
pursuant to this Article 10 to the extent that such reimbursement would
exceed 3.0% of Gross Proceeds. Additionally, the Advisor will provide the
Independent Directors with (i) a summary of Organizational and Offering
Expenses incurred prior to the date of this Agreement, and (ii) on a
quarterly basis, a summary of Organizational and Offering Expenses
incurred during such quarter. The Company shall not reimburse the Advisor
for any Organizational and Offering Expenses a majority of the Independent
Directors decide are not fair and commercially reasonable to the Company.
(ii) Acquisition Expenses incurred in connection with the selection
and acquisition of Assets including such expenses incurred related to
assets pursued or considered but not ultimately acquired by the Company;
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(iii) the actual out-of-pocket cost of goods and services used by
the Company or the General Partner and obtained from entities not
Affiliated with the Advisor, including brokerage fees paid in connection
with the purchase and sale of Assets;
(iv) taxes and assessments on income or Assets and taxes as an
expense of doing business and any other taxes otherwise imposed on the
Company and its business or income;
(v) out-of-pocket costs associated with insurance required in
connection with the business of the Company or by its officers and
Directors;
(vi) all out-of-pocket expenses in connection with payments to the
Board of Directors and meetings of the Board of Directors and
Shareholders;
(vii) personnel and related employment direct costs incurred by the
Advisor or Affiliates in performing the services described in Sections
3.01 and 3.04, including but not limited to salary, benefits, burdens and
overhead of all employees directly involved in the performance of such
services, plus all out-of-pocket costs incurred;
(viii) out-of-pocket expenses of maintaining communications with
Shareholders, including the cost of preparation, printing, and mailing
annual reports and other Shareholder reports, proxy statements and other
reports required by governmental entities;
(ix) audit, accounting and legal fees, and other fees for
professional services relating to the operations of the Company and all
such fees incurred at the request, or on behalf of, the Independent
Directors or any committee of the Board of Directors;
(x) out-of-pocket costs for the Company to comply with all
applicable laws, regulation and ordinances; and
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(xi) all other out-of-pocket costs necessary for the operation of
the Company and its Assets incurred by the Advisor in performing its
duties hereunder.
Except as specifically provided for above in (i) and (vii) related to
Organization and Offering Expenses and shareholder services expenses, the
expenses and payments subject to reimbursement by the Company in this Section
10.01 do not include personnel and related direct employment or overhead costs
of the Advisor or Affiliates. The Company shall also reimburse the Advisor or
Affiliates of the Advisor for all expenses incurred on behalf of the Company or
the General Partner prior to the execution of this Agreement.
10.02 Reimbursement to Advisor. Expenses incurred by the Advisor on behalf
of the Company and payable pursuant to this Section 10 shall be reimbursed to
the Advisor within 10 days after the Advisor provides the Company with an
invoice and supporting documentation relating to such reimbursement.
10.03 Reimbursement to Company. The Company shall not reimburse the
Advisor during any fiscal quarter for Operating Expenses that, in the four
consecutive fiscal quarters then ended (the "Expense Year"), exceed the 2%/25%
Guidelines for such year (the "Excess Amount"), unless the Independent Directors
determine that such excess was justified, based on unusual and non-recurring
factors which they deem sufficient, in which case the Excess Amount may be
reimbursed. Any Excess Amount paid to the Advisor during a fiscal quarter
without the Independent Directors determining that such expenses were justified
shall be repaid to the Company. Within 60 days after the end of any fiscal
quarter of the Company for which total Operating Expenses for the Expense Year
exceed the 2%/25% Guidelines and the Independent Directors determined that such
expenses were justified, there shall be sent to the Shareholders a written
disclosure of such fact, together with an explanation of the factors the
Independent
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Directors considered in determining that such excess expenses were 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.
ARTICLE 11
OTHER SERVICES
Should (i) the General Partner request that the Advisor or any manager,
officer or employee thereof render services for the Company other than as set
forth in this Agreement or (ii) there are changes to the regulatory environment
in which the Advisor or Company operates that would increase significantly the
level of services performed such that the costs and expenses borne by the
Advisor for which the Advisor is not entitled to separate reimbursement for
personnel and related employment direct costs and overhead under Article 10 of
this Agreement would increase significantly, 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.
ARTICLE 12
RELATIONSHIP OF ADVISOR AND COMPANY; OTHER ACTIVITIES OF THE ADVISOR
12.01 Relationship. 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. Nothing herein contained shall
prevent the Advisor from engaging in other activities, including, without
limitation, the rendering of advice to other Persons and the management of other
programs advised, sponsored or organized by the Advisor or its Affiliates.
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Nor shall this Agreement limit or restrict the right of any manager, director,
officer, employee, or equityholder 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 promptly disclose 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.
12.02 Time Commitment. The Advisor shall, and shall cause its Affiliates
and their respective employees, officers and agents to, devote to the Company
such time as shall be reasonably necessary to conduct the business and affairs
of the Company in an appropriate manner consistent with the terms of this
Agreement. The Company acknowledges that the Advisor and other Affiliates of
Hines and their respective employees, officers and agents may also engage in
activities unrelated to the Company and may provide services to Persons other
than the Company or any of its Affiliates.
12.03 Investment Opportunities and Allocation. The Advisor shall be
required to use commercially reasonable efforts to present a continuing and
suitable investment program to the Company which is consistent with the
investment policies and objectives of the Company, but neither the Advisor nor
any Affiliate of the Advisor shall be obligated generally to present any
particular investment opportunity to the Company even if the opportunity is of
character which, if presented to the Company, could be taken by the Company. In
the event an investment opportunity is located, the allocation procedure set
forth under the caption "Conflicts of
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Interest -- Competitive Activities of Hines and its Affiliates" in the
Prospectus shall govern the allocation of the opportunity among the Company and
Affiliates of the Advisor.
ARTICLE 13
THE HINES NAME
The Advisor, Hines and their Affiliates have a proprietary interest in the
name "Hines". The Advisor hereby grants to the Company a non-transferable,
non-assignable, non-exclusive royalty-free right and license to use the name
"Hines" during the term of this Agreement. Accordingly, and in recognition of
this right, if at any time the Company ceases to retain Hines or an Affiliate
thereof to perform the services of Advisor, the Company (including the General
Partner) will, promptly after receipt of written request from Hines, cease to
conduct business under or use the name "Hines" or any derivative thereof and the
Company and the General Partner shall change the name of the Company and the
General Partner to a name that does not contain the name "Hines" or any other
word or words that might, in the reasonable discretion of the Advisor, be
susceptible of indication of some form of relationship between the Company and
the Advisor or any Affiliate thereof. At such time, the Company will also make
any changes to any trademarks, servicemarks or other marks necessary to remove
any references to the word "Hines". Consistent with the foregoing, it is
specifically recognized that the Advisor or one or more of its Affiliates has in
the past and may in the future organize, sponsor or otherwise permit to exist
other investment vehicles (including vehicles for investment in real estate) and
financial and service organizations having "Xxxxx" as a part of their name, all
without the need for any consent (and without the right to object thereto) by
the Company or the General Partner.
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ARTICLE 14
TERM AND TERMINATION OF THE AGREEMENT
14.01 Term. This Agreement shall have an initial term of one year from the
date of the Agreement. This Agreement may be renewed for an unlimited number of
successive one-year terms upon mutual consent of the parties. Any such renewal
must be approved by a majority of the Independent Directors. The General Partner
(through the Independent Directors) 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.
14.02 Termination by Either Party. This Agreement may be terminated upon
60 days' written notice without cause or penalty by either party.
14.03 Termination by the Company. This Agreement may be terminated
immediately by the Company upon (i) any fraudulent conduct, criminal conduct,
willful misconduct or the negligent breach of fiduciary duty of or by the
Advisor, (ii) a material breach of this Agreement by the Advisor not cured
within 10 business days after the Advisor receives written notice of such
breach, or (iii) an event of the bankruptcy of the Advisor or commencement of
any bankruptcy or similar insolvency proceedings of the Advisor.
14.04 Termination by the Advisor. This Agreement may be terminated
immediately by the Advisor in the event of (i) the bankruptcy of the Company or
commencement of any bankruptcy or similar insolvency proceedings of the Company,
or (ii) any material breach of this Agreement by the Company not cured by the
Company within 10 days after written notice thereof.
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14.05 Payments on Termination and Survival of Certain Rights and
Obligations. Payments to the Advisor pursuant to this Section 14.05 shall be
subject to the 2%/25% Guidelines to the extent applicable.
(i) 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 and all earned but
unpaid fees payable to the Advisor prior to termination of this Agreement.
(ii) The Advisor shall promptly upon termination:
(a) pay over to the Company all money collected pursuant to
this Agreement, if any, after deducting any accrued compensation and
reimbursement for its expenses to which it is then entitled;
(b) deliver to the 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 Directors;
(c) deliver to the Directors all assets and documents of the
Company then in the custody of the Advisor; and
(d) cooperate with the Company to provide an orderly
transition of advisory functions.
Upon the expiration or termination of this Agreement, neither party shall have
any further rights or obligations under this Agreement, except that Articles 13,
16 and 17 shall survive the termination or expiration of this Agreement.
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14.06 Repurchase of Units. In the event this Agreement expires without the
consent of the Advisor, or is terminated for any reason other than by the
Advisor pursuant to Section 14.02 or Section 14.04, the Company shall, at the
election of the Advisor or any of its Affiliates and at any time (and from time
to time) after the effective date of such expiration or termination, purchase
all or a portion of the Units or Participation Interest (as applicable) held by
the Advisor and its Affiliates. The purchase price shall be paid in cash or, at
the election of the seller, Shares, and shall be payable within 120 days after
the Advisor or its Affiliates (as applicable) gives the Company written notice
of its desire to sell all or a portion of the Units or Participation Interest
held by such Person to the Company. The General Partner agrees to keep a
sufficient number of authorized but unissued Shares available for issuance
pursuant to this Section 14.06 and shall issue Shares as may be required
hereunder. The purchase price of each interest in the Company pursuant to this
Section 14.06 shall be (i) in the event the seller elects to receive cash, the
Cash Amount the seller would receive under a redemption of such interests under
Section 3.2 of the Limited Partnership Agreement assuming the Company paid cash
for such redemption, or (ii) in the event the seller elects to receive Shares,
the REIT Shares Amount the seller would receive under a redemption of such
interests under Section 3.2 of the Limited Partnership Agreement assuming the
Company paid Shares for such redemption.
ARTICLE 15
ASSIGNMENT
This Agreement may be assigned by the Advisor to an Affiliate with the
consent of the General Partner by approval of 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
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of the Board of Directors. This Agreement shall not be assigned by the Company
without the consent of the Advisor.
ARTICLE 16
INDEMNIFICATION AND LIMITATION OF LIABILITY
16.01 Indemnification by the Company. The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective managers,
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 Texas,
the Articles of Incorporation or Agreement of Limited Partnership of the
Company, provided that: (i) the Advisor and its Affiliates have determined that
the course of conduct which caused the loss or liability was in the best
interests of the Company, (ii) the Advisor and its Affiliates were acting on
behalf of or performing services for the Company, and (iii) the indemnified
claim was not the result of negligence, misconduct, or fraud of the indemnified
person or resulted from a breach of the agreement by the Advisor. Any
indemnification of the Advisor may be made only out of the net assets of the
Company and not from the Shareholders.
16.02 Indemnification by the 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 misconduct or reckless disregard of its duties, but the
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Advisor shall not be held responsible for any action of the Board of Directors
in following or declining to follow any of the Advisor's advice or
recommendation.
16.03 Advisor's Liability
(i) Notwithstanding any other provisions of this Agreement, in no
event shall the Company make any claim against Advisor, or its Affiliates,
on account of any good faith interpretation by Advisor of the provisions
of this Agreement (even if such interpretation is later determined to be a
breach of this Agreement) or any alleged errors in judgment made in good
faith and in accordance with this Agreement in connection with the
operation of the operations of the Company hereunder by Advisor or the
performance of any advisory or technical services provided by or arranged
by the Advisor. The provisions of this Section 16.3(a) shall not be deemed
to release Advisor from liability for its gross negligence.
(ii) The Company shall not object to any expenditures made by the
Advisor in good faith in the course of its performance of its obligations
under this Agreement or in settlement of any claim arising out of the
operation of the Company unless such expenditure is specifically
prohibited by this Agreement. The provisions of this Section 16.03(b)
shall not be deemed to release Advisor from liability for its gross
negligence.
(iii) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR DAMAGES BASED ON
LOSS OF INCOME, PROFIT OR SAVINGS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF THE OTHER PARTY OR PERSON,
INCLUDING THIRD PARTIES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND ALL SUCH
25
DAMAGES ARE EXPRESSLY DISCLAIMED. IN NO EVENT WILL ADVISOR'S AGGREGATE
LIABILITY UNDER THIS AGREEMENT EVER EXCEED THE TOTAL AMOUNT OF FEES IT
ACTUALLY RECEIVES FROM THE COMPANY PURSUANT TO ARTICLE 9.
ARTICLE 17
MISCELLANEOUS
17.01 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 Company, the General Partner or the Directors:
Xxxxx REIT Properties, L.P.
c/x Xxxxx Real Estate Investment Trust, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To the Advisor:
Hines Advisors Limited Partnership
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Either party may at any time give notice in writing to the other party of
a change in its address for the purposes of this Section 17.01.
17.02 Modification. This Agreement shall not be changed, modified,
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
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17.03 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.
17.04 Construction. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of Texas.
17.05 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.
17.06 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.
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17.07 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.
17.08 Titles Not to Affect Interpretation. The titles of Articles and
Sections 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.
17.09 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories
[The remainder of this page is intentionally left blank.
Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Hines REIT Properties, L.P.
By: Hines Real Estate Investment Trust, Inc.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
Hines Advisors Limited Partnership
By: Hines Advisors GP LLC
Its: General Partner
By: /s/ XXXXXX X. XXXXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
Hines Real Estate Investment Trust, Inc.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
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