EXHIBIT 10.11C
SECOND AMENDED AND RESTATED
AND ADVISORY AGREEMENT
BETWEEN
AMERIVEST PROPERTIES INC.
AND
SHERIDAN REALTY ADVISORS, LLC
THIS AGREEMENT originally dated as of December 22, 1999 and revised and
restated as of March 12, 2001, is further revised and restated as of December
31, 2001 between AmeriVest Properties Inc., a Maryland corporation (the
"Company") and Sheridan Realty Advisors, LLC, a Colorado limited liability
company (the "Advisor")
W I T N E S S E T H:
WHEREAS, the Company owns certain real estate and related assets consisting
primarily of small-tenant office buildings; and
WHEREAS; the Company is qualified as a real estate investment trust as
defined in the Internal Revenue Code of 1986, as the same may be amended or
modified from time to time (which, together with any regulations and rulings
issued from time to time thereunder is hereinafter called the "Code"), and
invests its funds in investments permitted for a real estate investment trust;
and
WHEREAS, the individuals associated with the Advisor have extensive
experience in the acquisition, operation, management, administration and
disposition of real estate assets and in real estate capital markets; and
WHEREAS; the Board of the Directors of the Company decided on November 12,
1999 that it was in the Company's best interests to pursue an arrangement to
avail itself of the experience, sources of information, advice and assistance of
the Advisor and to have the Advisor perform the duties and responsibilities
hereinafter set forth, on behalf of and subject to the supervision of the
directors of the Company (the "Directors"), as provided herein; and
WHEREAS, the Board of Directors of the Company and the Advisor have agreed
that, effective as of January 1, 2001, the Company will acquire the property
management, accounting and administrative services business of the Advisor for
the sum of $100 plus the book value of the Advisor's assets, with the Advisor
continuing to advise the Company solely in connection with capital markets and
real estate acquisitions
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties agree as follows:
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1. Duties of the Advisor. Subject to the supervision of the Directors and
the other provisions of this Agreement, the Advisor will be responsible for
certain capital markets and real estate investment activities on behalf of the
Company and, subject to Section 17 hereof, shall provide such services and
activities relating to the assets, operations and business plan of the Company
as may be appropriate, including:
1.1 preparing and submitting an annual budget and business plan for
approval by the Directors (the "Business Plan");
1.2 using its best efforts to present to the Company for approval by the
Directors, a continuing and suitable real estate investment program consistent
with the investment policies and objectives of the Company as set forth in the
Business Plan;
1.3 using its best efforts to present to the Company investment
opportunities consistent with the Business Plan and such investment program as
the Directors may adopt from time to time;
1.4 serving as the Company's investment and financial advisor and
providing research, economic, and statistical data in connection with the
Company's investments and investment and financial policies;
1.5 on behalf of the Company, investigating, selecting and conducting
relations with borrowers, lenders, mortgagors, brokers, investors, builders,
developers and others; provided however, that the Advisor shall not retain on
the Company's behalf any consultants or third party professionals, other than
legal counsel, without prior approval of the Directors;
1.6 consulting with the Directors and furnishing the Directors with
advice and recommendations with respect to the making, acquiring (by purchase,
investment, exchange, or otherwise), holding, and disposition (through sale,
exchange, or otherwise) of investments consistent with the Business Plan of the
Company;
1.7 advising the Company in connection with public or private sales of
shares or other securities of the Company, or loans to the Company, but in no
event in such a way that the Advisor could be deemed to be acting as a broker
dealer or underwriter;
1.8 monthly and at any other time requested by the Directors, making
reports to the Directors regarding the Company's performance to date in relation
to the Company's approved Business Plan and its various components, as well as
the Advisor's performance of the foregoing services;
1. 9 supervising and managing remodeling, refurbishment, construction or
other capital projects in connection with the real estate properties owned or
managed by the Company.
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2. No Partnership or Joint Venture. The Company and the Advisor are not
partners or joint venturers with each other, and nothing herein shall be
construed so as to make them such partners or joint venturers or impose any
liability as such on either of them.
3. Records. At all times, the Advisor shall keep proper books of account
and records with respect to the Advisor's activities on behalf of the Company
which books shall be accessible for inspection by the Company at any time during
ordinary business hours, and copies of which shall be provided to the Company
with respect to each quarter within 60 days after the end of each quarter. These
books of account and records are deemed to be the property of the Company. The
Advisor will be entitled to keep copies for all periods for which this Agreement
is in effect.
4. Additional Obligations of the Advisor. The Advisor shall refrain from
any action (including, without limitation, furnishing or rendering services to
tenants of property or managing or operating real property) that would (a)
adversely affect the status of the Company as a real estate investment trust, as
defined and limited in Sections 856-860 of the Internal Revenue Code, (b)
violate any law, rule, regulation, or statement of policy of any governmental
body or agency having jurisdiction over the Company or over its securities, (c)
cause the Company to be required to register as an investment company under the
Investment Company Act of 1940, or (d) otherwise not be permitted by the
Articles of Incorporation of the Company.
5. Information Furnished to Advisor. The Directors shall have the right to
change the Business Plan at any time, effective upon receipt by the Advisor of
notice of such change.
6. Compensation of Advisor. For services rendered under this Agreement, the
Advisor shall receive the following compensation:
6.1 Advisory Fee. A one-time advisory fee equal to five percent (5%) of
the Equity Value (defined below) of all real property acquired or long-term
leased by the Company during the term of the Agreement. Payment of the Advisory
Fee is intended to cover overhead expenses of the Advisor not covered by the
Administrative fee and is subject to certain limitations on the operating
expenses of the Advisor as set forth below.
6.2 Capital Project Fee. A supervision and project management fee equal
to three percent (3%) of the total cost of all capital projects in excess of
$100,000 and approved by the Company, with respect to projects commenced by the
Company after September 1, 2000.
7. Incentive Compensation. As additional compensation for its services,
Advisor shall receive an incentive fee consisting of 750,000 common stock
purchase warrants ("Incentive Warrants") exercisable at $5 per share with a term
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of five (5) years. The warrants shall be issued as of December 22, 1999 and
225,000 Incentive Warrants shall vest immediately. The balance of 525,000
Incentive Warrants shall vest and become exercisable only as follows:
7.1 Upon completion of an acquisition, purchase or long-term lease of
real property by the Company, the remaining Incentive Warrants shall vest in an
amount equal to 2.1% of the Equity Value of the Property acquired. "Equity
Value" of a property is equal to the acquisition price of the property
(including expenses of purchase) less any mortgage debt assumed or incurred in
connection with the acquisition plus any capital expenditures and lease-up costs
incurred in connection with the property during the first 12 months of
ownership. Any cash proceeds from the sale or refinancing of assets owned by the
Company and excess cash flow generated by assets owned by the Company that is
received by the Company subsequent to January 1, 2000 and that has not been
previously deducted from the acquisition price in a prior determination of
Equity Value shall also be deducted from the acquisition price as part of the
calculation of Equity Value. The total amount of Equity Value of real property
subject to incentive compensation under this Agreement shall not exceed $ 50
million.
7.2 Upon issuance, Incentive Warrants shall be issued to the Advisor for
distribution to members and employees of the Advisor in accordance with the
Warrant Distribution Schedule approved by the Company. This Warrant Distribution
Schedule may be reasonably adjusted from time to time by the Advisor, with
approval of the Directors. All members and employees of the Advisor who are
scheduled to receive Incentive Warrants shall execute a Buy-Sell Agreement with
the Advisor which contains a vesting schedule and provides for the disposition
of the Incentive Warrants in a manner reasonably acceptable to the Company in
the event of the death, retirement or termination of the member or employee.
7.3 Notwithstanding the vesting schedule, the warrants shall not be
exercisable by the
holders until January 1, 2003.
7.4 Issuance of Incentive Warrants is subject to all applicable rules of
the Securities and Exchange Commission and the National Association of
Securities Dealers or the American Stock Exchange, as applicable. The Company
and the Advisor agree to cooperate with each other as may be required to obtain
all approvals as may be necessary to complete the issuance of Incentive Warrants
under this Agreement, including the approval of shareholders of the Company as
may be required. The failure to obtain shareholder approval for the issuance of
Incentive Warrants shall not invalidate any other provisions of this Agreement.
8. Statements. The Advisor shall furnish to the Company not later than 30
days after the end of each calendar quarter, a statement showing the computation
of the fees, if any, payable with respect to the preceding calendar quarter (or,
in the case of incentive compensation, for the preceding Fiscal Year, as
appropriate) under this Agreement. The final settlement of incentive
compensation for each Fiscal Year shall be subject to adjustment in accordance
with, and upon completion of, the annual audit of the Company's financial
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statements; any payment by the Company or repayment by the Advisor that shall be
indicated to be necessary in accordance therewith shall be made promptly after
the completion of such audit and shall be reflected in the audited statements to
be published by the Company.
9. Compensation for Additional Services. If and to the extent that the
Directors shall request the Advisor or any director, officer, partner, or
employee of the Advisor to render services for the Company other than those
required to be rendered by the Advisor hereunder, such additional services, if
performed, will be compensated separately on terms to be agreed upon between
such party and the Company in advance of the performance of such services.
10. Expenses of the Advisor. Without regard to the amount of compensation
or reimbursement received hereunder by the Advisor, the Advisor shall bear the
following expenses:
10.1 employment expenses of the personnel employed by the Advisor
(including Directors, officers, and employees of the Company who are directors,
officers, or employees of the Advisor or of any company that controls, is
controlled by, or is under common control with the Advisor), including, but not
limited to, fees, salaries, wages, payroll taxes, travel expenses, and the cost
of employee benefit plans and temporary help expenses;
10.2 advertising and promotional expenses, including investor
relations, incurred in seeking investments for the Company;
10.3 rent, telephone, utilities, office furniture and furnishings, and
other office expenses of the Advisor and the Company, except as any of such
expenses relates to an office maintained by the Company separate from the office
of the Advisor; and
10.4 miscellaneous administrative expenses relating to performance by
the Advisor of its functions hereunder.
11. Expenses of the Company. The Company shall pay all of its expenses not
assumed by the Advisor, including the cost of all operating personnel and other
expenses related to the day-to-day operating and management of the Company.
12. Other Activities of Advisor. The Advisor, its officers, directors, or
employees or any of its Affiliates may engage in other business activities
related to real estate investments or act as advisor to any other person or
entity (including another real estate investment trust), including those with
investment policies similar to the Company, provided that the Advisor and its
officers, directors, or employees and any of its Affiliates shall present in
writing to the Company on a right of first refusal basis any real estate
investment opportunity that comes to the Advisor or such persons, regardless of
whether such opportunity is in accordance with the Company's Business Plan.
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13. Limitation on Advisory Fee. To the extent that the Advisory Fee during
the initial term of this Agreement exceeds the budget submitted by the Advisor
and contained in the Business Plan ("Approved Budget"), the Advisor shall refund
such excess fees to the Company. For purposes of calculating the Approved
Budget, the parties shall include the expenses of the Advisor from September 1,
1999.
14. Term; Termination of Agreement. This Agreement shall commence effective
as of January 1, 2000 (the "Effective Date") and shall continue in force until
December 31, 2003, and, thereafter, it may be renewed from year to year, subject
to any required approval of the Stockholders of the Company, by the approval of
a majority of the Directors who are not affiliated with the Advisors. This
Agreement may be terminated for any reason without penalty upon 120 days'
written notice by the Company to the Advisor by the vote of a majority of the
Directors who are not Affiliates of the Advisor or by the vote of holders of a
majority of the outstanding shares of the Company. Notwithstanding the
foregoing, however, in the event of any material change in the ownership,
control, or management of the Advisor, the Company may terminate this Agreement
without penalty and without advance notice to the Advisor. Resignation of either
Xxxxxxx X. Xxxxxx or Xxxxxxx X. Xxxxxx from the Advisor without prior approval
of the Company shall be deemed a material change in control. If the Company
desires to renew after the initial term or after the first one-year renewal
following the initial term and the Advisor does not agree to renew or cannot
renew (because both of Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx are not willing to
renew or for any other reason), then for the 30-day period following the first
30-day period after termination of this Agreement, the Company will have the
right to acquire all the outstanding Incentive Warrants at a price equal to the
greater of (a) the amount, if any, by which the "Thirty Day Average Price", as
defined below, exceeds the exercise price of the Incentive Warrants, and (b)
$.001 per Incentive Warrant. The Company may effect a purchase of Incentive
Warrants by delivering to the Warrant Holder a notice of repurchase together
with a check or money order for the amount of payment. As used in this
paragraph, the term "Thirty Day Average Price" means the weighted average sale
price for the Company's common stock during the entire 30-day period following
termination of this Agreement.
15. Change of Control If there occurs a "Change in Control", as defined
below, and this Agreement is terminated within 90 days after the occurrence of
the Change in Control other than in the manner specified in Section 14 above,
then all Incentive Warrants shall become exercisable immediately upon that
termination of this Agreement and the Company shall pay to Advisor within 30
days after that termination all cash compensation owed by the Company to the
Advisor through the date of termination plus an amount equal to the excess of
all costs, liabilities and expenses incurred by Advisor in the performance of
its obligations pursuant to this Agreement since the commencement of this
Agreement over all compensation and reimbursement received by Advisor pursuant
to this Agreement. For purposes of this Section 15, a Change in Control shall
mean that the individuals who, as of the Effective Date, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least a
majority of the Board; provided however, that if the election, or nomination for
election by the Company's stockholders, of any new director was approved by a
vote of at least a majority of the then Incumbent Board, such new director
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shall, for purposes of this Section 15, be considered as a member of the
Incumbent Board; provided further however, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the 0000 Xxx) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board (a "Proxy Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy Contest, and provided further
that the replacement of a Director who is an Affiliate of Advisor by another
director who is an Affiliate of Advisor shall not be considered in determining
whether there has been a change in the number of Incumbent Directors leading to
a possible Change in Control.
16. Amendments. 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 assigns, or otherwise as
provided herein.
17. Assignment. This Agreement shall not be assigned by the Advisor without
the prior consent of the Company. The Company may terminate this Agreement in
the event of its assignment by the Advisor without the prior consent of the
Company. Such an assignment or any other assignment of this Agreement shall bind
the assignee hereunder in the same manner as the Advisor is bound hereunder.
This Agreement shall not be assignable by the Company without the consent of the
Advisor, except in the case of assignment by the Company to a corporation,
association, trust, or other organization that is a successor to the Company.
Such successor shall be bound hereunder and by the terms of said assignment in
the same manner as the Company is bound hereunder.
18. Default, Bankruptcy, Etc.. At the option solely of the Directors, this
Agreement shall be and become terminated immediately upon written notice of
termination from the Directors to the Advisor if any of the following events
shall occur:
18.1 If the Advisor shall violate any provision of this Agreement, and
after notice of such violation shall not cure such default within 30 days; or
18.2 If the Advisor shall be adjudged bankrupt or insolvent by a court
of competent jurisdiction, or an order shall be made by a court of competent
jurisdiction for the appointment of a receiver, liquidator, or trustee of the
Advisor or of all or substantially all of its property by reason of the
foregoing, or approving any petition filed against the Advisor for its
reorganization, and such adjudication or order shall remain in force or unstayed
for a period of 30 days; or
18.3 If the Advisor shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the Federal
bankruptcy laws, or for relief under any law for the relief of debtors, or shall
consent to the appointment of a receiver of itself or of all or substantially
all its property, or shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts generally,
as they become due.
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The Advisor agrees that if any of the events specified in subsections 18.2
and 18.3 of this Section 18 shall occur, it will give written notice thereof to
the Directors within seven days after the occurrence of such event.
19. Action Upon Termination. From and after the effective date of
termination of this Agreement, pursuant to Sections 17 or 18 hereof, the Advisor
shall not be entitled to compensation for further services hereunder but shall
be paid all compensation accruing to the date of termination based on the Equity
Value of all properties and cash proceeds not yet invested as of the termination
Date. In addition to any obligations hereunder that may have accrued as of the
effective date of termination (such as the obligations to provide reports for
prior months), the Advisor shall forthwith upon such termination:
19.1 pay over to the Company all monies collected and held for the
account of the Company pursuant to this Agreement;
19.2 deliver to the Directors a full accounting, including a statement
showing all payments collected by it and a statement of any monies held by it,
covering the period following the date of the last accounting furnished to the
Directors;
19.3 deliver to the Directors all property and documents of the Company
then in the custody of the Advisor; and
19.4 cooperate with the Company and take all reasonable additional
steps requested to assist the Company in making an orderly transition of the
advisory functions.
20. Miscellaneous. The Advisor shall be deemed to be in a fiduciary
relationship to the shareholders of the Company. The Advisor assumes no
responsibility under this Agreement other than to render the services called for
hereunder in good faith, and shall not be responsible for any action of the
Directors in following or declining to follow any advice or recommendations of
the Advisor. Neither the Advisor nor any of its shareholders, directors,
officers, or employees shall be liable to the Company, the Directors, the
holders of securities of the Company or to any successor or assign of the
Company for any losses arising from the operation of the Company if the Advisor
had determined, in good faith, that the course of conduct which caused the loss
or liability was in the best interests of the Company and the liability or loss
was not the result of negligence or misconduct by the Advisor. However, in no
event will the directors, officers or employees of the Advisor be personally
liable for any act or failure to act unless it was the result of such person's
willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
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21. Notices. Any notice, report, or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report, or other communication is accepted by the party to
whom it is given, and shall be given by being delivered at the following
addresses of the parties hereto:
to the Directors and/or the Company:
AmeriVest Properties Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Chief Executive Officer
to the Advisor:
Sheridan Realty Advisors, LLC
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
Either party may at any time give notice in writing to the other party of a
change of its address for the purpose of this Section 21.
22. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction, or effect of this Agreement.
23. Governing Law. This Agreement has been prepared, negotiated and
executed in the State of Colorado. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of Colorado
applicable to agreements made and to be performed entirely in the State of
Colorado.
24. Execution. This instrument is executed and made on behalf of the
Company by an officer of the Company, not individually but solely as an officer,
and the obligations under this Agreement are not binding upon, nor shall resort
be had to the private property of, any of the Directors, stockholders, officers,
employees, or agents of the Company personally, but bind only the Company
property.
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SHERIDAN REALTY ADVISORS, LLC., by their duly authorized officers, have signed
these presents all as of the day and year first above written.
AMERIVEST PROPERTIES INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
Chief Executive Officer
SHERIDAN REALTY ADVISORS, LLC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
President
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