EXHIBIT 10.1
FORM OF
AMENDED AND RESTATED
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this "AGREEMENT"), dated as of November 9, 2005,
as amended and restated 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 XXXXX
TIMBER REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation (the
"COMPANY"), XXXXX TIMBER OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), and XXXXX CAPITAL, INC., a Georgia corporation
(the "ADVISOR").
WITNESSETH
WHEREAS, the Company has filed 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
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 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, acquisition or development of any Property, whether or not acquired,
including, without limitation, legal fees and expenses, travel and
communications expenses, costs of appraisals, nonrefundable option payments on
property not acquired, accounting fees and expenses, and title insurance
premiums.
ADVISOR. Xxxxx Capital, Inc., a Georgia corporation, any successor advisor
to the Company, the Partnership or any Person(s) to which Xxxxx Capital, Inc. 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 controlling, controlled by, or
under common control with such other Person; (ii) any Person directly or
indirectly owning, controlling, or holding with the power to vote 10% or more of
the outstanding voting securities of such other Person; (iii) any legal entity
for which such Person acts as an executive officer, director, trustee, or
general partner, (iv) any Person 10% or more of whose outstanding voting
securities are directly or indirectly owned, controlled, or held, with power to
vote, by such other Person; and (v) any executive officer, director, trustee, or
general partner of such other Person. An entity shall not be deemed to control
or be under common control with an Advisor-sponsored program unless (i) the
entity owns 10% or more of the voting equity interests of such program or (ii) a
majority of the board (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, as amended from time to time.
ASSET MANAGEMENT FEE. A monthly fee in an amount equal to one-twelfth of
1.25% of the sum of (a) the actual amount invested on behalf of the Company in
the Properties (including any incurred or assumed indebtedness related to the
Properties and any capital improvements made subsequent to the initial
investment) plus (b) with respect to Joint Ventures, the actual amount invested
on behalf of the Company in the Joint Ventures plus the Company's allocable
share of capital improvements made by the Joint Venture from cash flows
generated by the Joint Venture, until such time as Advisor may estimate the
value of all interests the Company holds in Properties or Joint Ventures for
ERISA reporting purposes; and after such time, ASSET MANAGEMENT FEE means a
monthly fee in an amount equal to one-twelfth of 1.25% of the greater of (1) the
sum of (x) the actual amount invested on behalf of the Company in the Properties
(including any incurred or assumed indebtedness related to the Properties and
any capital improvements made subsequent to the initial investment) plus (y)
with respect to Joint Ventures, the actual amount invested on behalf of the
Company in the Joint Ventures plus the Company's allocable share of capital
improvements made by the Joint Venture from cash flows generated by the Joint
Venture, or (2) the aggregate value of the Company's interest in the Properties
and Joint Ventures as established in connection with the most recent estimated
valuation to assist ERISA fiduciaries in fulfilling their annual valuation and
reporting responsibilities.
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 Properties and Loans secured by real estate before reserves for
depreciation, depletion, 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.
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 and the dealer manager fee as described under "Plan of
Distribution" to the Registration Statement.
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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 60
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, 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. Xxxxx Timber Real Estate Investment Trust, 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 property which is reasonable, customary, and
competitive in light of the size, type, and location of the property.
CONTRACT SALES PRICE. The total consideration received by the Company for
the sale of a Property.
DIRECTOR. A member of the Board of Directors of the Company.
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.
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 60 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 PROCEEDS. The aggregate cash purchase price of all Shares sold for
the account of the Company through an Offering, without deduction for
Organization and Offering Expenses.
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 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 real estate investment trusts advised by the Advisor, or (vi) maintenance
of a material business or professional relationship with the Advisor or any of
its
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Affiliates. A business or professional relationship is considered material if
the gross revenue derived by the Director from the Advisor and Affiliates
exceeds 5% of either the Director's annual gross revenue 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, 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.
LISTING. The term "LISTING" shall mean that the Shares have been approved
for trading on a national securities exchange. 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, depletion, 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 dividend 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
Organization and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other such
expenses and tax incurred in connection with the issuance, distribution,
transfer, registration and Listing of the Shares, (ii) interest payments, (iii)
taxes, (iv) non-cash expenditures such as depreciation, amortization and bad
loan reserves, (v) incentive fees paid in compliance with Section IV.F of the
NASAA Guidelines and (vi) 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).
ORGANIZATION AND OFFERING EXPENSES. All expenses incurred by and to be paid
from the assets of the Company in connection with and in preparing the Company
for registration of and subsequently offering and distributing its Shares to the
public, which may include but are not limited to, total underwriting and
brokerage discounts and commissions (including fees of the underwriters'
attorneys); expenses for printing, engraving and mailing; salaries of employees
while engaged in sales, education and marketing activities; charges of transfer
agents, registrars, trustees, escrow holders, depositaries and experts; and
expenses of registration and qualification of the sale of the securities,
including taxes and fees, accountants' and attorneys' fees.
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PARTNERSHIP. Xxxxx Timber Operating Partnership, 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 real property or properties, or any portion
thereof, transferred or conveyed to the Company or the Partnership, either
directly or indirectly.
REIT. A real estate investment trust under Sections 856 through 860 of the
Code.
REAL ESTATE 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(b).
SALE OR SALES. (i) Any transaction or series of transactions whereby: (A)
the Company or the Partnership 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
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; or (C) any joint venture 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, but (ii) not including any transaction
or series of transactions specified in clause (i)(A), (i)(B), or (i)(C) above in
which the proceeds of such transaction or series of transactions are reinvested
in one or more Properties within 180 days thereafter.
SPECIAL UNITS. The separate series of limited partnership interests issued
to Xxxxx Capital, Inc. pursuant to the Partnership Agreement as referenced in
Section 8(c).
STOCKHOLDERS. The registered holders of the Shares.
TERMINATION DATE. The date of termination of the Agreement.
TERMINATION EVENT. The termination or nonrenewal of this Agreement (i) in
connection with a merger, sale of assets or other corporate transaction
involving the Company, (ii) by the Advisor for Good Reason or (iii) by the
Company and the Operating Partnership other than for Cause.
TIMBER MANAGER. Any entity that has been retained to perform and carry out
property 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.
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2%/25% GUIDELINES. The requirement pursuant to the NASAA Guidelines that,
in any 12-month period, total Operating Expenses not exceed the greater of 2% of
the Company's Average Invested Assets during such 12-month period or 25% of the
Company's Net Income over the same 12-month period.
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 to provide a continuing and suitable investment program
consistent with (i) the investment objectives and policies of the Company as
determined and adopted from time to time by the Board and (ii) the investment
allocation method described at Section 10(b) of this Agreement 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 engage one or more Timber Managers, 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 of the Company 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 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 a
stock ledger reflecting a record of the Stockholders and their ownership of the
Company's Shares and acting as transfer agent for the Company's Shares and
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, 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) consult with the officers and 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 investment objectives and
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policies of the Company and in connection with any borrowings proposed to be
undertaken by the Company and the Partnership;
(F) oversee the performance by each Timber Manager of its duties, including
collection of payments due from sales of timber and third parties under
contracts related to use of the Property and other assets of the Company and
payment of Property expenses and maintenance;
(G) conduct periodic on-site property 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 the Timber Manager of its
duties;
(H) review, analyze and comment upon the operating budgets, capital
budgets, harvest schedules and leasing plans prepared and submitted by the
Timber Manager and aggregate these property budgets into the Company's overall
budget;
(I) review and analyze on-going financial information pertaining to each
Property and the overall portfolio of Properties;
(J) 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;
(K) 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;
(L) 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 the Property and other assets of the Company,
including timber harvesting; (vi) enter into service contracts for Property,
including oversight of Affiliated companies that perform property management
services for the Company and the Partnership; (vii) oversee the non-affiliated
Timber Manager and 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;
(M) obtain the prior approval of the Board for any and all investments in
Properties;
(N) 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 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; and provided, further, that any
fees and costs payable to third parties incurred by the Advisor in connection
with the foregoing shall be the responsibility of the Company or the
Partnership;
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(O) 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;
(P) 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;
(Q) 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;
(R) provide the Company and the Partnership with all necessary cash
management services;
(S) deliver to or maintain on behalf of the Company copies of all
appraisals obtained in connection with the investments in Properties;
(T) notify the Board of all proposed material transactions before they are
completed; and
(U) 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;
(V) effect any private placements of Units or other interests in Properties
as may be approved by the Board; and
(W) do all things necessary to assure its ability to render the services
described in this Agreement.
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. 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.
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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 or to the Board or stockholders for any act or omission
by the Advisor, its directors, officers or employees, 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
16 and 17 of this Agreement.
8. FEES.
(A) ASSET MANAGEMENT FEE. Subject to the overall limitations contained
below in this Section 8(a), commencing on the Effective Date, the Advisor shall
receive the Asset Management Fee in consideration for the services rendered in
connection with the management of the Company's assets, calculated on the last
day of each preceding month. 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). If the Advisor elects to
receive the Asset Management Fee in the form of Shares, 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 a purchase price discounts for
certain categories of purchasers). If the Shares are not Listed and the Offering
Stage has been completed for 12 month 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 Assets on the
date of election.
(B) REAL ESTATE DISPOSITION FEE. If the Advisor or an Affiliate provides a
substantial amount of the services (as determined by a majority of the
Independent Directors) in connection with the Sale of one or more Properties,
the Advisor or such Affiliate shall receive at closing a Real Estate Disposition
Fee equal to the lesser of (i) one-half of the Competitive Real Estate
Commission, or (1) if the contract price for the Sale is in excess of $20
million, then an amount not to exceed 1.0% of the contract price of such
Property or Properties, and (2) if the contract price for the sale is $20
million or less, then an amount not to exceed 2.0% of the sales price of such
Property or Properties. In each case in which a Real Estate 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 Real Estate Disposition Fee
shall be payable to the Advisor 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 Real Estate Disposition Fee
would be payable if the Advisor or an Affiliate provides a substantial amount of
services as provided above). Any Real Estate 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
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(including such Real Estate Disposition Fee) paid to all Persons by the Company
for each Property shall not exceed an amount equal to the lesser of (i) 6.0% of
the Contract Sales Price of the Property or (ii) the Competitive Real Estate
Commission for the Property.
(C) SPECIAL PARTNERSHIP UNITS. The Advisor has made capital contributions
to the Partnership in exchange for certain partnership units as described as
follows: $2,000 in exchange for 200 common units and $1,000 in exchange for 100
Special Units. Upon the earliest to occur of the termination of this Agreement
for Cause, a Termination Event, or a Listing, all of the Special Units shall be
redeemed by the Partnership in accordance with the terms of the Partnership
Agreement.
(D) CHANGES TO FEE STRUCTURE. In the event of 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 Organization and Offering Expenses; provided, however, that
within 60 days after the end of the month in which an Offering terminates,
the Advisor shall reimburse the Company 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) Organization and Offering
Expenses borne by the Company exceed 15% of the Gross Proceeds raised in a
completed Offering;
(ii) Acquisition Expenses payable to unaffiliated Persons incurred in
connection with the selection and acquisition of Properties;
(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 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 Properties;
(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 expenses in connection with payments to the Board and
meetings of the Board and Stockholders;
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(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 (i) 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 (ii) the
Company's allocable share of other overhead of the Advisor such as rent and
utilities); and
(xiv) audit, accounting and legal fees.
(B) OTHER SERVICES. Should the Board request that 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 services 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, 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 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 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 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 our 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
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
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of our 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.
10. OTHER ACTIVITIES OF THE ADVISOR.
(A) GENERAL. 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 the Partners and its obligations to or its interest in any other
partnership, corporation, firm, individual, trust or association.
(B) POLICY WITH RESPECT TO ALLOCATION OF INVESTMENT OPPORTUNITIES. Before
the Advisor presents an investment opportunity that would in its judgment be
suitable for the Company or the Partnership to another Advisor-sponsored
program, the Advisor shall determine in its sole discretion that the investment
opportunity is more suitable for such other program than for the Company or the
Partnership based on factors such as the following: the investment objectives
and criteria of each program; the cash requirements and anticipated cash flow of
each program; the size of the investment opportunity; the effect of the
acquisition on diversification of each program's investments by type of property
and geographic area and, if applicable, tenant base; the policies of each
program relating to leverage; the estimated income tax effects of the purchase
on each entity; the funds of each entity available for investment and the length
of time such funds have been available for investment. In the event that an
investment opportunity becomes available that is, in the sole discretion of the
Advisor, equally suitable for the Company, the Partnership and another
Advisor-sponsored program, then the Advisor may offer the other program the
investment opportunity if it has had the longest period of time elapse since it
was offered an investment opportunity. The Advisor will use its reasonable
efforts to fairly allocate investment opportunities in accordance with such
allocation method and will promptly disclose any material deviation from such
policy or the establishment of a new policy, which shall be allowed provided (1)
the Board is provided with notice of such policy at least 60 days prior to such
policy becoming effective and (2) such policy provides for the reasonable
allocation of investment opportunities among such programs. The Advisor shall
provide the Independent Directors with any information reasonably requested so
that the Independent Directors can insure that the allocation of investment
opportunities is applied fairly. Nothing herein shall be deemed to prevent the
Advisor or an Affiliate from pursuing an investment opportunity directly rather
than offering it to the Company or another Advisor-sponsored program so long as
the Advisor is fulfilling its obligation to present a continuing and suitable
investment program to the Company which is consistent with the investment
policies and objectives of the Company and the Partnership.
11. 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.
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12. INTELLECTUAL PROPERTY.
(A) WORK PRODUCT. All right, title, and interest, including, without
limitation, all intellectual property rights, in or related to any services,
work product, and development work provided or performed by Advisor or Advisor's
subcontractors under or in connection with this Agreement, including, without
limitation, any works of authorship, inventions, processes, formulas,
proprietary information, databases, customer lists, marketing plans, business
strategies, financial information, forecasts, trademarks, services marks, brand
names, documents, data, designs, ideas, concepts, technical data, and any other
work product (collectively, "Work Product") shall vest in and be the sole and
exclusive property of Company. All copyrightable Work Product performed by or
for Advisor under this Agreement shall be considered works made for hire (as
that phrase is defined the United States Copyright Act, 17 U.S.C. Section 101,
and used in 17 U.S.C. Section 201) and, as such, shall be owned by Company. In
the event that any Work Product under this Agreement cannot be considered as a
work made for hire, Advisor hereby assigns, agrees to assign, and will cause its
employees and subcontractors to assign, to Company for no additional
consideration, all right, title, and interest that it may possess in such Work
Product. If and to the extent it is impossible as a matter of law to assign
ownership rights, including, without limitation, intellectual property rights in
any portion of the Work Product to Company, Advisor hereby grants to Company an
exclusive, irrevocable, perpetual, transferable, fully paid-up, worldwide and
unlimited right to use and exploit in any possible way (including, without
limitation, to modify, copy, amend, translate, further develop, prepare
derivative works of, distribute and sublicense) all intellectual property rights
pertaining to the Work Product, and any portion of it, and warrants with respect
to its employees and subcontractors, that they will do the same. Advisor
represents and warrants that Advisor has enforceable written agreements with all
of its employees and subcontractors involved in the provision of services and
work product under the Agreement to assign to Advisor ownership of work product,
and the intellectual property rights therein, created in the course of their
employment or engagement.
(B) FURTHER ACTIONS. At Company's request and without further
consideration, Advisor and Advisor's successors in interest shall execute any
and all powers of attorney, applications, assignments, declarations, affidavits,
and any other papers or documents necessary to perfect such right, title, and
interest in Company, its successors, assigns, and legal representatives. Advisor
shall not apply for the registration of rights in any of the Work Product under
any local, state or federal law of the United States or any other nation and
will not oppose or object in any way to applications for registration of same by
Company or Company's designee. Nothing in this Agreement shall be interpreted as
granting to Advisor any rights to the Work Product or any license to copy, adapt
or take any other action in respect of any Work Product, except on behalf of
Company as provided in this Agreement.
(C) THIRD PARTY MATERIALS. If Advisor shall incorporate into any Work
Product any materials of any third party, Advisor is responsible for obtaining,
at its own expense, all rights, licenses, consents, and permissions necessary
for Company to have the fully paid up, perpetual, irrevocable, worldwide and
unlimited right to use and exploit in any possible way (including, without
limitation, to modify, copy, amend, translate, further develop, prepare
derivative works of, distribute and sublicense) the third party materials in
connection with the Work Product, consistent with the terms of this Agreement,
and to sublicense these rights to others.
13. TERM; TERMINATION OF AGREEMENT.
(A) TERM. 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.
(B) TERMINATION BY EITHER PARTY.
(I) BY EITHER PARTY. This Agreement may be terminated upon 60 days
written notice without Cause or penalty, by either party (if by the
Company, upon approval of a majority of the Independent Directors).
(II) BY THE COMPANY. At the sole option of the Company, this Agreement
may be terminated by the Company immediately, subject to the 60-day cure
period, for Cause due to a material breach of this Agreement, upon written
notice of termination from the Board of Directors to the Advisor that the
Company has Cause to terminate this Agreement.
(III) BY THE ADVISOR. At the sole option of the Advisor, this Agreement
shall be terminated by the Advisor immediately, subject to the 60-day cure
period, for "Good Reason" 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.
(IV) SURVIVAL. The provisions of Section 12 and Sections 15 through 27
shall survive termination of this Agreement.
14. ASSIGNMENT TO AN 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. 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.
15. PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION. Payments to the
Advisor pursuant to this Section 15 shall be subject to the 2%/25% Guidelines to
the extent applicable.
(A) After the Termination Date, the Advisor shall not be entitled to
compensation for further services hereunder except it shall be entitled to
receive from the Company within 30 days after the effective date of such
termination all unpaid reimbursements of expenses 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
documents of the Company then in the custody of the Advisor; and
(IV) cooperate with the Company to provide an orderly management
transition.
16. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or losses
arising in the performance of their duties hereunder, and related expenses,
including reasonable attorneys' fees, to the extent such liability, claims,
damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland or the
Articles of Incorporation, Notwithstanding the foregoing, the Advisor shall not
be entitled to indemnification or be held harmless pursuant to this Section 16
for any activity which
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the Advisor shall be required to indemnify or hold harmless the Company pursuant
to Section 17. Any indemnification of the Advisor may be made only out of the
net assets of the Company and not from Stockholders.
17. 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.
18. 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: Xxxxx Timber Real Estate Investment Trust, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board
To the Partnership: Xxxxx Timber Operating Partnership, L.P
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board of
Xxxxx Timber Real Estate
Investment Trust, Inc., General
Partner
To the Advisor: Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: President
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 18.
19. 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.
20. 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.
21. CONSTRUCTION. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Georgia.
22. 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
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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.
23. 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.
24. 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.
25. 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.
26. 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.
27. NAME. Xxxxx Capital, Inc. has a proprietary interest in the name
"Xxxxx." Accordingly, and in recognition of this right, if at any time the
Company or the Partnership ceases to retain Xxxxx Capital, Inc. or an Affiliate
thereof to perform the services of Advisor, the Company or the Partnership, as
the case may be, will, promptly after receipt of written request from Xxxxx
Capital, Inc., cease to conduct business under or use the name "Xxxxx" or any
derivative thereof and the Company or the Partnership shall use its best efforts
to change the name of the Company to a name that does not contain the name
"Xxxxx" or any other word or words that might, in the sole discretion of the
Advisor, be susceptible of indication of some form of relationship between the
Company and the Advisor or any Affiliate thereof. Consistent with the foregoing,
it is specifically recognized that the Advisor or one or more of its Affiliates
has in the past and may in the future organize, sponsor or otherwise permit to
exist other investment vehicles (including vehicles for investment in real
estate) and financial and service organizations having "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 its Board.
[Signatures appear on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Advisory Agreement as of _________________________, 2006.
XXXXX TIMBER REAL ESTATE INVESTMENT TRUST, INC.
By:
-------------------------------------------
Name:
Title:
XXXXX TIMBER REAL ESTATE
OPERATING PARTNERSHIP, L.P.
By: Xxxxx Timber Real Estate Investment Trust,
Inc., General Partner
By:
-------------------------------------------
Name:
Title:
XXXXX CAPITAL, INC.
By:
-------------------------------------------
Name:
Title:
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