EXHIBIT 10.2
FORM OF ADVISORY AGREEMENT
This ADVISORY AGREEMENT (this "AGREEMENT") is entered into on this the
____ day of _____________, 2005, by and between BEHRINGER HARVARD OPPORTUNITY
REIT I, INC., a Maryland corporation (the "COMPANY"), and BEHRINGER HARVARD
OPPORTUNITY ADVISORS I LP, a Texas limited partnership (the "ADVISOR").
W I T N E S S E T H
WHEREAS, the Company will be issuing shares of its common stock, par
value $.0001, to the public, such shares to be registered with the Securities
and Exchange Commission and may subsequently issue additional securities;
WHEREAS, the Company intends to qualify as a real estate investment
trust and to invest its funds in investments permitted by the terms of the
Company's Articles of Incorporation and Sections 856 through 860 of the Internal
Revenue Code;
WHEREAS, the Company desires to avail itself of the experience, sources
of information, advice, assistance and certain facilities available to the
Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of, and subject to the supervision of, the
Board, all as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services,
subject to the supervision of the Board, on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
The following defined terms used in this Agreement shall have the
meanings specified below:
ACQUISITION EXPENSES. Any and all expenses incurred by the Company, the Advisor,
or any Affiliate of either in connection with the selection, acquisition or
development of any Asset, whether or not acquired, including, without
limitation, legal fees and expenses, travel and communications expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, and title insurance premiums.
ACQUISITION FEES. Any and all fees and commissions, exclusive of Acquisition
Expenses but including the Acquisition and Advisory Fees, paid by any Person to
any other Person (including any fees or commissions paid by or to any Affiliate
of the Company or the Advisor) in connection with making or investing in
Mortgages or the purchase, development or construction of an Asset, including,
without limitation, real estate commissions, selection fees, Development Fees,
Construction Fees, non-recurring management fees, loan fees, points or any other
fees of a similar nature. Excluded shall be Development Fees and Construction
Fees paid to any Person not affiliated with the Sponsor in connection with the
actual development and construction of any Property.
ACQUISITION AND ADVISORY FEES. The fees payable to the Advisor pursuant to
Section 3.01(b).
ADVISOR. Behringer Harvard Opportunity Advisors I LP, a Texas limited
partnership, any successor advisor to the Company, or any Person to which
Behringer Harvard Opportunity Advisors I LP or any successor advisor
subcontracts all or substantially all of its functions.
AFFILIATE OR AFFILIATED. As to any Person, (i) any Person directly or indirectly
owning, controlling, or holding, with the power to vote, 10% or more of the
outstanding voting securities of such other Person; (ii) any Person 10% or more
of whose outstanding voting securities are directly or indirectly owned,
controlled, or held, with power to vote, by such other Person; (iii) any Person,
directly or indirectly, controlling, controlled by, or under common control with
such other Person; (iv) any executive officer, director, trustee or general
partner of such other Person; and (v) any legal entity for which such Person
acts as an executive officer, director, trustee or general partner.
AGGREGATE ASSETS VALUE. The aggregate book value of the Assets at the time of
measurement before deducting depreciation, bad debts or other similar non-cash
reserves and without reduction for any debt secured by or relating to such
assets; provided, however, that during such periods in which the Company is
obtaining regular independent valuations of the current value of its net assets
for purposes of enabling fiduciaries of employee benefit plan stockholders to
comply with applicable Department of Labor reporting requirements, "Aggregate
Assets Value" will equal the greater of (i) the amount determined pursuant to
the foregoing or (ii) the Assets' aggregate valuation established by the most
recent such valuation report without reduction for depreciation, bad debts or
other non-cash reserves and without reduction for any debt secured by or
relating to such assets.
APPRAISED VALUE. Value according to an appraisal made by an Independent
Appraiser.
ARTICLES OF INCORPORATION. The Articles of Incorporation of the Company filed
with the Maryland State Department of Assessments and Taxation in accordance
with the Maryland General Corporation Law, as amended from time to time.
ASSETS. Properties, Mortgages and other direct or indirect investments in equity
interests in or loans secured by or otherwise relating to Real Property (other
than investments in bank accounts, money market funds or other current assets,
whether of the proceeds from an Offering or the sale of an Asset or otherwise)
owned by the Company, directly or indirectly through one or more of its
Affiliates or Joint Ventures.
ASSET MANAGEMENT FEE. The fee payable to the Advisor for day-to-day professional
management services in connection with the Company and its investments in Assets
pursuant to this Agreement.
AVERAGE INVESTED ASSETS. For a specified period, the average of the aggregate
book value of the Assets before deduction for depreciation, bad debts or other
non-cash reserves, computed by taking the average of such values at the end of
each month during such period; provided, however, that during such periods in
which the Company is obtaining regular independent valuations of the current
value of its net assets for purposes of enabling fiduciaries of employee benefit
plan stockholders to comply with applicable Department of Labor reporting
requirements, "Average Invested Assets" will equal the greater of (i) the amount
determined pursuant to the foregoing or (ii) the Assets' aggregate valuation
established by the most recent such valuation report(s) without reduction for
depreciation, bad debts or other non-cash reserves.
BOARD. The Board of Directors of the Company.
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BYLAWS. The bylaws of the Company, as the same are in effect from time to time.
CHANGE OF CONTROL. Any event (including, without limitation, issue, transfer or
other disposition of Shares of capital stock of the Company or equity interests
in the Partnership, merger, share exchange or consolidation) after which any
"person" (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes the "beneficial owner" (as
defined in Rule 13d-j of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of the Company or the Partnership
representing greater than 50% or more of the combined voting power of the
Company's or the Partnership's then outstanding securities, respectively;
provided, that, a Change of Control shall not be deemed to occur as a result of
any widely distributed public offering of the Shares.
CLOSING PRICE. On any date, the last sale price for any class or series of the
Company's Shares, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, for such Shares,
in either case as reported in the principal consolidated transaction reporting
system with respect to Shares listed or admitted to trading on the NYSE or, if
such Shares are not listed or admitted to trading on the NYSE, as reported on
the principal consolidated transaction reporting system with respect to Shares
listed on the principal national securities exchange on which such Shares are
listed or admitted to trading or, if such Shares are not listed or admitted to
trading on any national securities exchange, the last quoted price on The Nasdaq
Stock Market, or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the principal automated
quotation system or other quotation service that may then be in use or, if such
Shares are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
such Shares selected by the Board.
CODE. Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Code shall mean
such provision as in effect from time to time, as the same may be amended, and
any successor provision thereto, as interpreted by any applicable regulations as
in effect from time to time.
COMPANY. Behringer Harvard Opportunity REIT I, Inc., a corporation organized
under the laws of the State of Maryland.
COMPANY VALUE. The actual value of the Company as a going concern based on the
difference between (a) the actual value of all of its assets as determined in
good faith by the Board, including a majority of the Independent Directors, and
(b) all of its liabilities as set forth on its then current balance sheet,
provided that (i) if such Company Value is being determined in connection with a
Change of Control that establishes the Company's net worth (e.g., a tender offer
for the Shares, sale of all of the Shares or a merger) then the Company Value
shall be the net worth established thereby and (ii) if such Company Value is
being determined in connection with a Listing, then the Company Value shall be
equal to the number of outstanding Shares multiplied by the Closing Price of a
single Common Share averaged over a period of 30 trading days during which the
Shares are listed or quoted for trading after the date of Listing. For purposes
hereof, a "trading day" shall be any day on which the NYSE is open for trading
whether or not the Shares are then Listed on the NYSE and whether or not there
is an actual trade of such Shares on any such day. If the holder of Convertible
Shares disagree as to the Company Value as determined by the Board, then each of
the holder of Convertible Shares and the Company (determined by a majority of
the Independent Directors) shall name one appraiser and the two named appraisers
shall promptly agree in good faith to the appointment of one other appraiser
whose determination of the Company Value shall be final and binding on the
parties as to the Company Value. The cost of such appraisal shall be split
evenly between the Company and the Advisor.
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COMPETITIVE REAL ESTATE COMMISSION. A real estate or brokerage commission paid
or, if no such commission is paid, the amount that customarily would be paid for
the purchase or sale of a Property that is reasonable, customary, and
competitive in light of the size, type and location of the Property.
CONSTRUCTION FEE. A fee or other remuneration for acting as general contractor
and/or construction manager to construct improvements, supervise and coordinate
projects or to provide major repairs or rehabilitations on a Property.
CONTRACT PURCHASE PRICE. The amount actually paid or allocated in respect of the
purchase, development, construction or improvement of a Property, the amount of
funds advanced with respect to a Mortgage or the amount actually paid or
allocated in respect to the purchase of other Assets, in each case exclusive of
Acquisition Fees and Acquisition Expenses.
CONTRACT SALES PRICE. The total consideration provided for in the sales contract
for the sale of a Property.
CONVERTIBLE SHARES. The 1,000 shares of the Company's non-participating,
non-voting, convertible stock, par value $.0001 per share.
DEALER MANAGER. Behringer Securities LP, an Affiliate of the Advisor, or such
Person selected by the Board to act as the dealer manager for an Offering.
DEVELOPMENT FEE. A fee for the packaging of a Property or Mortgage, including
the negotiation and approval of plans, and any assistance in obtaining zoning
and necessary variances and financing for a specific Property, either initially
or at a later date.
DIRECTOR. A member of the Board.
DISTRIBUTIONS. Any dividends or other distributions of money or other property
by the Company to owners of Shares, including distributions that may constitute
a return of capital for federal income tax purposes.
GROSS PROCEEDS. The aggregate purchase price of all Shares sold for the account
of the Company through an Offering, without deduction for Selling Commissions,
volume discounts, any marketing support and due diligence expense reimbursement
or Organization and Offering Expenses. For the purpose of computing Gross
Proceeds, the purchase price of any Share for which reduced Selling Commissions
are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to the
Company are not reduced) shall be deemed to be the full amount of the Offering
price per Share pursuant to the Prospectus for such Offering without reduction.
INDEPENDENT APPRAISER. A Person with no material current or prior business or
personal relationship with the Advisor or the Directors and who is a qualified
appraiser of Real Property of the type held by the Company or of other Assets as
determined by the Board. Membership in a nationally recognized appraisal society
such as the American Institute of Real Estate Appraisers or the Society of Real
Estate Appraisers shall be conclusive evidence of such qualification as to Real
Property.
INDEPENDENT DIRECTOR. A Director who is not on the date of determination, and
within the last two years from the date of determination has not been, directly
or indirectly associated with the Sponsor, the Company, the Advisor or any of
their Affiliates by virtue of (i) ownership of an interest in the Sponsor, the
Advisor or any of their Affiliates, other than the Company, (ii) employment by
the Sponsor, the Company, the Advisor or any of their Affiliates, (iii) service
as an officer or director of the Sponsor, the Advisor or any of their
Affiliates, other than as a Director of the Company, (iv) performance of
services,
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other than as a Director of the Company, (v) service as a director or trustee of
more than three real estate investment trusts organized by the Sponsor or
advised by the Advisor, or (vi) maintenance of a material business or
professional relationship with the Sponsor, the Advisor or any of their
Affiliates. A business or professional relationship is considered material if
the aggregate gross revenue derived by the Director from the Sponsor, the
Advisor and their Affiliates exceeds 5% of either the Director's annual gross
income during either of the last two years or the Director's net worth on a fair
market value basis. An indirect association with the Sponsor or the Advisor
shall include circumstances in which a Director's spouse, parent, child,
sibling, mother- or father-in-law, son- or daughter-in-law, or brother- or
sister-in-law is or has been associated with the Sponsor, the Advisor, any of
their Affiliates, or the Company.
INTELLECTUAL PROPERTY RIGHTS. All rights, titles and interests, whether foreign
or domestic, in and to any and all trade secrets, confidential information
rights, patents, invention rights, copyrights, service marks, trademarks,
know-how, or similar intellectual property rights and all applications and
rights to apply for such rights, as well as any and all moral rights, rights of
privacy, publicity and similar rights and license rights of any type under the
laws or regulations of any governmental, regulatory, or judicial authority,
foreign or domestic and all renewals and extensions thereof.
INVESTED CAPITAL. The amount calculated by multiplying the total number of
Shares purchased by Stockholders by the issue price, reduced by the portion of
any Distribution (other than any Stock Dividends) that is attributable to Net
Sales Proceeds and by any amounts paid by the Company to repurchase Shares
pursuant to the Company's plan for repurchase of Shares.
JOINT VENTURES. The joint venture or partnership arrangements in which the
Company or the Partnership is a co-venturer or general partner, which are
established to acquire or hold Assets.
LISTING OR LISTED. The listing of the Shares of the Company on a national
securities exchange or the quotation of shares on The Nasdaq Stock Market. Upon
such Listing, the Shares shall be deemed Listed.
MORTGAGES. In connection with mortgage financing provided, invested in or
purchased by the Company, all of the notes, deeds of trust, security interests
or other evidences of indebtedness or obligations, which are secured or
collateralized by Real Property owned by the borrowers under such notes, deeds
of trust, security interests or other evidences of indebtedness or obligations.
NASAA GUIDELINES. The Statement of Policy Regarding Real Estate Investment
Trusts of the North American Securities Administrators Association, Inc.
NET INCOME. For any period, the Company's total revenues applicable to such
period, less the total expenses applicable to such period other than additions
to reserves for depreciation, bad debts or other similar non-cash reserves and
excluding any gain from the sale of the Assets.
NET SALES PROCEEDS. In the case of a transaction described in clause (i)(A) of
the definition of Sale, the proceeds of any such transaction less the amount of
selling expenses incurred by or on behalf of the Company, including all real
estate commissions, closing costs and legal fees and expenses. In the case of a
transaction described in clause (i)(B) of such definition, Net Sales Proceeds
means the proceeds of any such transaction less the amount of selling expenses
incurred by or on behalf of the Company, including any legal fees and expenses
and other selling expenses incurred in connection with such transaction. In the
case of a transaction described in clause (i)(C) of such definition, Net Sales
Proceeds means the proceeds of any such transaction actually distributed to the
Company from the Joint Venture less the amount of any selling expenses,
including legal fees and expenses incurred by or on behalf of the Company (other
than those paid by the Joint Venture). In the case of a transaction or series of
transactions described in clause (i)(D) of the definition of Sale, Net Sales
Proceeds means the proceeds of
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any such transaction (including the aggregate of all payments under a Mortgage
or in satisfaction thereof other than regularly scheduled interest payments to
the extent such interest accrues at a rate of less than ten percent (10%) per
annum) less the amount of selling expenses incurred by or on behalf of the
Company, including all commissions closing costs and legal fees and expenses. In
the case of a transaction described in clause (i)(E) of such definition, Net
Sales Proceeds means the proceeds of any such transaction less the amount of
selling expenses incurred by or on behalf of the Company, including any legal
fees and expenses and other selling expenses incurred in connection with such
transaction. In the case of a transaction described in clause (ii) of the
definition of Sale, Net Sales Proceeds means the proceeds of such transaction or
series of transactions less all amounts generated thereby which are reinvested
in one or more Assets within 180 days thereafter and less the amount of any real
estate commissions, closing costs, and legal fees and expenses and other selling
expenses incurred by or allocated to the Company in connection with such
transaction or series of transactions. Net Sales Proceeds shall also include any
consideration (including non-cash consideration such as stock, notes, or other
property or securities) that the Company determines, in its discretion, to be
economically equivalent to proceeds of a Sale, valued in the reasonable
determination of the Company. Net Sales Proceeds shall not include any reserves
established by the Company in its sole discretion.
NYSE. The New York Stock Exchange, Inc.
OFFERING. Any public offering of Shares pursuant to an effective registration
statement filed under the Securities Act during periods from and after the date
hereof.
ORGANIZATION AND OFFERING EXPENSES. Any and all costs and expenses, other than
Selling Commissions and the dealer manager fee (as in effect from time to time),
incurred by and to be paid by the Company, the Advisor or any Affiliate in
connection with the formation, qualification and registration of the Company and
the marketing and distribution of its Shares, including, without limitation, the
following: legal, accounting and escrow fees; printing, amending, supplementing,
mailing and distributing costs; filing, registration and qualification fees and
taxes; telecopier and telephone costs; and all advertising and marketing
expenses, including the costs related to investor and broker-dealer sales
meetings.
PARTNERSHIP. Behringer Harvard Opportunity OP I LP, a Texas limited partnership,
through which the Company may own Assets.
PERFORMANCE FEE. The fee payable to the Advisor upon termination of this
Agreement under certain circumstances if certain performance standards have been
met pursuant to Section 4.03(b) or (c).
PERSON. An individual, corporation, association, business trust, estate, trust,
partnership, limited liability company or other legal entity.
PROPERTY OR PROPERTIES. As the context requires, any, or all, respectively, of
the Real Property acquired by the Company, either directly or indirectly
(whether through joint venture arrangements or other partnership or investment
interests).
PROPRIETARY PROPERTY. All modeling algorithms, tools, computer programs,
know-how, methodologies, processes, technologies, ideas, concepts, skills,
routines, subroutines, operating instructions and other materials and aides used
in performing the duties set forth in Section 2.02 that relate to investment
advice regarding current and potential Assets, and all modifications,
enhancements and derivative works of the foregoing.
PROSPECTUS. Prospectus has the meaning set forth in Section 2(10) of the
Securities Act, including a preliminary prospectus, an offering circular as
described in Rule 256 of the General Rules and
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Regulations under the Securities Act or, in the case of an intrastate offering,
any document by whatever name known, utilized for the purpose of offering and
selling securities of the Company to the public.
REAL PROPERTY. Land, rights in land (including leasehold interests), and any
buildings, structures, improvements, furnishings, fixtures and equipment located
on or used in connection with land and rights or interests in land.
REIT. A corporation, trust, association or other legal entity (other than a real
estate syndication) that is engaged primarily in investing in equity interests
in real estate (including fee ownership and leasehold interests) or in loans
secured by real estate or both in accordance with Sections 856 through 860 of
the Code.
SALE OR SALES. (i) Any transaction or series of transactions whereby: (A) the
Company or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including the
lease of any Property consisting of a building only, and including any event
with respect to any Property which gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Company or the Partnership
directly or indirectly (except as described in other subsections of this
definition) sells, grants, transfers, conveys, or relinquishes its ownership of
all or substantially all of the interest of the Company or the Partnership in
any Joint Venture in which it is a co-venturer or partner; (C) any Joint Venture
directly or indirectly (except as described in other subsections of this
definition) in which the Company or the Partnership as a co-venturer or partner
sells, grants, transfers, conveys, or relinquishes its ownership of any Property
or portion thereof, including any event with respect to any Property which gives
rise to insurance claims or condemnation awards; (D) the Company or the
Partnership directly or indirectly (except as described in other subsections of
this definition) sells, grants, conveys or relinquishes its interest in any
Mortgage or portion thereof (including with respect to any Mortgage, all
repayments thereunder or in satisfaction thereof other than regularly scheduled
interest payments) and any event with respect to a Mortgage which gives rise to
a significant amount of insurance proceeds or similar awards; or (E) the Company
or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any other Asset not previously described in this
definition or any portion thereof, but (ii) not including any transaction or
series of transactions specified in clause (i) (A) through (E) above in which
the proceeds of such transaction or series of transactions are reinvested in one
or more Assets within 180 days thereafter.
SECURITIES ACT. The Securities Act of 1933, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Securities Act
shall mean such provision as in effect from time to time, as the same may be
amended, and any successor provision thereto, as interpreted by any applicable
regulations as in effect from time to time.
SELLING COMMISSIONS. Any and all commissions payable to underwriters, dealer
managers or other broker-dealers in connection with the sale of Shares,
including, without limitation, commissions payable to Behringer Securities LP.
SHARES. Any shares of the Company's common stock, par value $.0001 per share.
SOLICITING DEALERS. Broker-dealers who are members of the National Association
of Securities Dealers, Inc., or that are exempt from broker-dealer registration,
and who, in either case, have executed participating broker or other agreements
with the Dealer Manager to sell Shares.
SPONSOR. Xxxxxx X. Xxxxxxxxx.
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STOCK DIVIDEND. Any dividend or other distribution paid to stockholders of the
Company in the form of additional Shares.
STOCKHOLDERS. The record holders of the Company's Shares as maintained in the
books and records of the Company or its transfer agent.
STOCKHOLDERS' 10% RETURN. As of any date, an aggregate amount equal to a 10%
cumulative, noncompounded, annual return on Invested Capital (calculated like
simple interest); provided, however, that for purposes of calculating the
Stockholders' 10% Return, any Stock Dividend shall not be included as a
Distribution; and provided further that for purposes of determining the
Stockholders' 10% Return, the return for each portion of the Invested Capital
shall commence for purposes of the calculation upon the issuance of the shares
issued in connection with such capital.
SUBORDINATED DISPOSITION FEE. The fee payable to the Advisor for services
provided in connection with the Sale of one or more Properties pursuant to
Section 3.01(c).
SUBORDINATED INCENTIVE LISTING FEE. The fee payable to the Advisor under certain
circumstances if the Shares are Listed pursuant to Section 3.01(e).
SUBORDINATED SHARE OF NET SALES PROCEEDS. The fee payable to the Advisor under
certain circumstances following receipt of Net Sales Proceeds pursuant to
Section 3.01(d).
TERMINATION DATE. The date of termination of this Agreement.
TOTAL OPERATING EXPENSES. All costs and expenses paid or incurred by the
Company, as determined under generally accepted accounting principles, which are
in any way related to the operation of the Company or to Company business,
including the Asset Management Fee, but excluding (i) the expenses of raising
capital such as Organization and Offering Expenses, legal, audit, accounting,
underwriting, brokerage, listing, registration, and other fees, printing and
other such expenses and tax incurred in connection with the issuance,
distribution, transfer, registration and Listing of the Shares, (ii) interest
payments, (iii) taxes, (iv) non-cash expenditures such as depreciation,
amortization and bad debt reserves, (v) the Subordinated Share of Net Sales
Proceeds, (vi) the Performance Fee, (vii) the Subordinated Incentive Listing
Fee, (viii) Acquisition Fees and Acquisition Expenses, (ix) real estate
commissions on the Sale of Property, and (x) other fees and expenses connected
with the acquisition, disposition, management and ownership of real estate
interests, mortgage loans or other property (including the costs of foreclosure,
insurance premiums, legal services, maintenance, repair and improvement of
property).
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
Average Invested Assets during such 12 month period or 25% of Net Income over
the same 12 month period.
ARTICLE II
THE ADVISOR
2.01 APPOINTMENT. The Company hereby appoints the Advisor to serve as its
advisor on the terms and conditions set forth in this Agreement, and the Advisor
hereby accepts such appointment.
2.02 DUTIES OF THE ADVISOR. The Advisor shall be deemed to be in a fiduciary
relationship to the Company and its Stockholders. The Advisor undertakes to use
its best efforts to present to the Company potential investment opportunities
and to provide a continuing and suitable investment program consistent
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with the investment objectives and policies of the Company as determined and
adopted from time to time by the Board. In performance of this undertaking,
subject to the supervision of the Board and consistent with the provisions of
the Company's most recent Prospectus for Shares, the Articles of Incorporation
and Bylaws, the Advisor shall, either directly or by engaging an Affiliate of
the Advisor or other Person:
(a) serve as the Company's investment and financial advisor and
provide research and economic and statistical data in connection with
the Assets and investment policies;
(b) provide the daily management of the Company and perform and
supervise the various administrative functions reasonably necessary for
the management and operations of the Company;
(c) maintain and preserve the books and records of the Company,
including stock books and records reflecting a record of the
Stockholders and their ownership of the Company's uncertificated Shares,
if any, and acting as transfer agent for the Company's Shares;
(d) investigate, select, and, on behalf of the Company, engage and
conduct business with such Persons as the Advisor deems necessary to the
proper performance of its obligations hereunder, including but not
limited to consultants, accountants, correspondents, lenders, technical
advisors, attorneys, brokers, underwriters, corporate fiduciaries,
escrow agents, depositaries, custodians, agents for collection,
insurers, insurance agents, banks, builders, developers, property
owners, mortgagors, property management companies, transfer agents and
any and all agents for any of the foregoing, including Affiliates of the
Advisor, and Persons acting in any other capacity deemed by the Advisor
necessary or desirable for the performance of any of the foregoing
services, including but not limited to entering into contracts in the
name of the Company with any of the foregoing;
(e) consult with the officers and the Board 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 policies of the Company and in connection with any
borrowings proposed to be undertaken by the Company;
(f) subject to the provisions of Sections 2.02(h) and 2.03 hereof,
(i) locate, analyze and select potential investments in Assets, (ii)
structure and negotiate the terms and conditions of transactions
pursuant to which investment in Assets will be made; (iii) make
investments in Assets on behalf of the Company or the Partnership in
compliance with the investment objectives and policies of the Company;
(iv) arrange for financing and refinancing and make other changes in the
asset or capital structure of, and dispose of, reinvest the proceeds
from the sale of, or otherwise deal with the investments in, Assets; and
(v) enter into leases of Property and service contracts for Assets and,
to the extent necessary, perform all other operational functions for the
maintenance and administration of such Assets, including the servicing
of Mortgages;
(g) provide the Board with periodic reports regarding prospective
investments in Assets;
(h) obtain the prior approval of the Board (including a majority of
all Independent Directors) for any and all investments in Assets;
(i) negotiate on behalf of the Company with banks or lenders for
loans to be made to the Company, negotiate on behalf of the Company with
investment banking firms and broker-dealers, and negotiate private sales
of Shares and other securities of the Company or obtain loans for the
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Company, as and when appropriate, but in no event in such a way so that
the Advisor shall be acting as broker-dealer or underwriter; and
provided, further, that any fees and costs payable to third parties
incurred by the Advisor in connection with the foregoing shall be the
responsibility of the Company;
(j) obtain reports (which may be prepared by or for the Advisor or
its Affiliates), where appropriate, concerning the value of investments
or contemplated investments of the Company in Assets;
(k) from time to time, or at any time reasonably requested by the
Board, make reports to the Board of its performance of services to the
Company under this Agreement;
(l) provide the Company with all necessary cash management services;
(m) deliver to or maintain on behalf of the Company copies of all
appraisals obtained in connection with the investments in Assets;
(n) upon request of the Company, act, or obtain the services of
others to act, as attorney-in-fact or agent of the Company in making,
requiring and disposing of Assets, disbursing, and collecting the funds,
paying the debts and fulfilling the obligations of the Company and
handling, prosecuting and settling any claims of the Company, including
foreclosing and otherwise enforcing mortgage and other liens and
security interests comprising any of the Assets;
(o) supervise the preparation and filing and distribution of returns
and reports to governmental agencies and to Stockholders and other
investors and act on behalf of the Company in connection with investor
relations;
(p) provide office space, equipment and personnel as required for
the performance of the foregoing services as Advisor;
(q) prepare on behalf of the Company all reports and returns
required by the Securities and Exchange Commission, Internal Revenue
Service and other state or federal governmental agencies; and
(r) do all things necessary to assure its ability to render the
services described in this Agreement.
2.03 AUTHORITY OF ADVISOR.
(a) Pursuant to the terms of this Agreement (including the
restrictions included in this Section 2.03 and in Section 2.06), and
subject to the continuing and exclusive authority of the Board over the
management of the Company, the Board hereby delegates to the Advisor the
authority to (i) locate, analyze and select investment opportunities,
(ii) structure the terms and conditions of transactions pursuant to
which investments will be made or acquired for the Company or the
Partnership, (iii) acquire Properties, make and acquire Mortgages and
invest in other Assets in compliance with the investment objectives and
policies of the Company, (iv) arrange for financing or refinancing of
Assets, (v) enter into leases for the Properties and service contracts
for the Assets, including oversight of Affiliated companies that perform
property management or other services for the Company, (vi) oversee
non-affiliated and Affiliated property managers and other non-affiliated
and Affiliated Persons who perform services for the Company, and (vii)
undertake accounting and other record-keeping functions at the Asset
level.
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(b) Notwithstanding the foregoing, any investment in Assets by the
Company or the Partnership (as well as any financing acquired by the
Company or the Partnership in connection with such investment), will
require the prior approval of the Board (including a majority of the
Independent Directors).
(c) The prior approval of a majority of the Independent Directors
and a majority of the Board not otherwise interested in the transaction
will be required for each transaction with the Advisor or its
Affiliates.
(d) If a transaction requires approval by the Board, the Advisor
will deliver to the Directors all documents required by them to properly
evaluate the proposed transaction.
The Board may, at any time upon the giving of notice to the Advisor,
modify or revoke the authority set forth in this Section 2.03. If and to the
extent the Board so modifies or revokes the authority contained herein, the
Advisor shall henceforth submit to the Board for prior approval such proposed
transactions involving investments in Assets as thereafter require prior
approval, provided however, that such modification or revocation shall be
effective upon receipt by the Advisor and shall not be applicable to investment
transactions to which the Advisor has committed the Company prior to the date of
receipt by the Advisor of such notification.
2.04 BANK ACCOUNTS. The Advisor may establish and maintain one or more bank
accounts in its own name for the account of the Company or in the name of the
Company and may collect and deposit into any such account or accounts, and
disburse from any such account or accounts, any money on behalf of the Company,
under such terms and conditions as the Board 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, its Audit Committee and the auditors of the Company.
2.05 RECORDS; ACCESS. The Advisor shall maintain appropriate records of all
its activities hereunder and make such records available for inspection by the
Board and by counsel, auditors and authorized agents of the Company, at any time
or from time to time during normal business hours. The Advisor shall at all
reasonable times have access to the books and records of the Company.
2.06 LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from taking any action
which, in its sole judgment made in good faith, would (a) adversely affect the
status of the Company as a REIT, (b) subject the Company to regulation under the
Investment Company Act of 1940, as amended, or (c) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Company, the Shares or any of the Company's securities, or
otherwise not be permitted by the Articles of Incorporation or Bylaws, except if
such action shall be ordered by the Board, 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. The Advisor, its directors, officers, employees and
stockholders, and the directors, officers, employees and stockholders of the
Advisor's Affiliates shall not be liable to the Company or to the Board or
Stockholders for any act or omission by the Advisor, its directors, officers,
employees or stockholders, or for any act or omission of any Affiliate of the
Advisor, its directors, officers or employees or stockholders except as provided
in Section 5.02 of this Agreement.
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2.07 RELATIONSHIP WITH DIRECTORS. Directors, officers and employees of the
Advisor or an Affiliate of the Advisor may serve as Directors, officers or
employees of the Company, except that no director, officer or employee of the
Advisor or its Affiliates who also is a Director shall receive any compensation
from the Company for serving as a Director other than reasonable reimbursement
for travel and related expenses incurred in attending meetings of the Board.
2.08 OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall prevent
the Advisor or its Affiliates from engaging in other activities, including,
without limitation, the rendering of advice to other Persons (including other
REITs) and the management of other programs advised, sponsored or organized by
the Advisor or its Affiliates; nor shall this Agreement limit or restrict the
right of any director, officer, employee, or stockholder of the Advisor or its
Affiliates to engage in any other business or to render services of any kind to
any other Person. The Advisor may, with respect to any investment in which the
Company is a participant, also render advice and service to each and every other
participant therein. The Advisor shall report to the Board the existence of any
condition or circumstance, existing or anticipated, of which it has knowledge,
which creates or could create a conflict of interest between the Advisor's
obligations to the Company and its obligations to or its interest in any other
Person. The Advisor or its Affiliates shall promptly disclose to the Board
knowledge of such condition or circumstance. If the Sponsor, Advisor, Director
or Affiliates thereof have sponsored other investment programs with similar
investment objectives which have investment funds available at the same time as
the Company, it shall be the duty of the Board (including the Independent
Directors) to adopt the method set forth in the Company's most recent Prospectus
for its Shares or another reasonable method by which investments are to be
allocated to the competing investment entities and to use their best efforts to
apply such method fairly to the Company.
ARTICLE III
COMPENSATION
3.01 FEES.
(a) ASSET MANAGEMENT FEE. The Company shall pay the Advisor a
monthly Asset Management Fee on the 15th day of each month in an amount
equal to 1/12th of 0.75% of Aggregate Assets Value as of the last day of
the preceding month.
(b) ACQUISITION AND ADVISORY FEES. The Company shall pay the Advisor
a fee in the amount of 2.5% of the Contract Purchase Price of each Asset
as Acquisition and Advisory Fees payable at the time and in respect of
funds expended for (i) the acquisition of an Asset, (ii) to the extent
that such funds are capitalized, for the development, construction or
improvement of an Asset, or (iii) the making of a Mortgage. The total of
all Acquisition Fees and any Acquisition Expenses shall be limited in
accordance with the Articles of Incorporation.
(c) SUBORDINATED DISPOSITION FEE. If the Advisor or an Affiliate
provides a substantial amount of the services (as determined by a
majority of the Independent Directors) in connection with the Sale of
one or more Assets, the Advisor or such Affiliate shall receive, subject
to the satisfaction of the condition outlined below, a Subordinated
Disposition Fee in an amount (the "CONTINGENT SUBORDINATED DISPOSITION
FEE") equal to (subject to the limitation in the following paragraph)
(i) in the case of the sale of Property, the lesser of (A) one-half of a
Competitive Real Estate Commission or (B) 3% of the sales price of such
Property and (ii) in the case of the sale of any Asset other than
Property, 3% of the sales price of such Asset or Assets. The Contingent
Subordinated Disposition Fee will not be earned or paid unless and until
the Stockholders have received total Distributions in an amount equal to
or in excess of the sum of their aggregate
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Invested Capital plus the Stockholders' 10% Return. To the extent that,
in any instance, the Contingent Subordinated Disposition Fees is not
earned and paid due to the foregoing limitation, the Contingent
Subordinated Disposition Fees that would have been earned and paid had
the foregoing limitation not been in place at the time of a Sale shall
be a contingent liability of the Company, which shall be paid if and
only if the conditions set forth in this subparagraph 3.01(c) have been
satisfied and, upon the satisfaction of such condition, the Company
shall pay all such Contingent Subordination Disposition Fees as if such
condition had been satisfied with respect to each such prior Sale.
The Subordinated Disposition Fee may be payable in addition to real
estate commissions paid to non-Affiliates, provided, however, that the
total real estate commissions paid to all Persons by the Company
(together with the Subordinated Disposition Fee) shall in no case exceed
an amount equal to the lesser of (i) 6% of the Contract Sales Price of
an Asset or (ii) the Competitive Real Estate Commission in respect of
any Property.
In the event this Agreement is terminated prior to such time as the
Stockholders have received total Distributions in an amount equal to or
in excess of the sum of their aggregate Invested Capital plus the
Stockholders' 10% Return through the Termination Date, the Company Value
shall be determined and any contingent liabilities for the payment of
Contingent Subordinated Disposition Fees on Assets previously sold will
be paid if the Company Value plus total Distributions received prior to
the Termination Date equals or exceeds the sum of the aggregate Invested
Capital plus the Stockholders' 10% Return through the Termination Date
and then only to the extent of such excess.
Following Listing, and as soon as practicable after determination of
Market Value (defined below), any contingent liabilities for the payment
of the Contingent Subordinated Disposition Fees on Assets previously
sold will be earned and paid if and only if the Stockholders have
received or been deemed to have received total Distributions in an
amount equal to or in excess of the sum of the aggregate Invested
Capital plus the Stockholders' 10% Return through the date of Listing.
For purposes of the preceding sentence, in addition to actual
Distributions received, Stockholders will be deemed to have received
Distributions in the amount equal to the product of the total number of
Shares outstanding and the average closing price of the Shares over the
30-trading-day period beginning the date of Listing (the "MARKET
VALUE"). Once any Contingent Subordinated Disposition Fees are actually
paid, such amounts shall thereafter be referred to as "Subordinated
Disposition Fees."
(d) SUBORDINATED SHARE OF NET SALES PROCEEDS. Prior to Listing but
after the Stockholders have received total Distributions in an amount
equal to the sum of their aggregate Invested Capital and Stockholders'
10% Return, upon the consummation of any Sale, the Advisor shall receive
a Subordinated Share of Net Sales Proceeds in an amount equal to 15% of
Net Sales Proceeds less the amount by which the Company's debt for
borrowed money exceeds the aggregate book value of the Company's assets
after the sale of the Asset(s) in respect of which the Net Sales
Proceeds is being determined.
Following Listing, and as soon as practicable after determination of
Market Value, if the Stockholders have received or been deemed to have
received total Distributions in an amount equal to the sum of their
aggregate Invested Capital and Stockholders' 10% Return through the date
of Listing, the Advisor shall receive a Subordinated Share of Net Sales
Proceeds in an amount equal to 15% of Net Sales Proceeds less the amount
by which the Company's debt for borrowed money exceeds the aggregate
book value of the Company's assets after the sale of the Asset(s) in
respect of which the Net Sales Proceeds is being determined. For
purposes of this
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subparagraph (d), in determining whether the Subordinated Share of Net
Sales Proceeds is payable following Listing, in addition to actual
Distributions received, Stockholders will be deemed to have received
Distributions in the amount equal to the Market Value.
(e) SUBORDINATED INCENTIVE LISTING FEE. Following Listing, and as
soon as practicable after determination of Market Value, the Advisor
shall be entitled to receive a Subordinated Incentive Listing Fee
payable in the form of an interest bearing promissory note (the "SILF
NOTE") in a principal amount equal to 15% of the amount by which (i) the
market value of the outstanding Shares, measured by taking the Market
Value, plus the total of all Distributions paid to Stockholders from the
Company's inception until the date of Listing, exceeds (ii) the sum of
(A) 100% of Invested Capital and (B) the total Distributions required to
be paid to the Stockholders in order to pay the Stockholders' 10% Return
from inception through the date of Listing. Interest on the SILF Note
will accrue beginning on the date of Listing at a rate deemed fair and
reasonable by the Independent Directors on the date of Listing. The
Company shall repay the SILF Note using the entire Net Sales Proceeds of
each Sale after Listing until the SILF Note is paid in full, with
interest. If the SILF Note has not been paid in full within five years
from the date of Listing, then the Advisor, its successors or assigns,
may elect to convert the balance of the SILF NOTE, including accrued but
unpaid interest, into Shares at a price per Share equal to the average
Closing Price of the Shares over the ten trading days immediately
preceding the date of such election. If the Shares are no longer listed
at such time as the SILF Note becomes convertible into Shares as
provided by this paragraph, then the price per Share, for purposes of
conversion, shall equal the fair market value for the Shares as
determined by the Board based upon the Appraised Value of the Assets as
of the date of election. The principal amount of the SILF Note shall be
referred to as "Subordinated Disposition Fees."
(f) DEBT FINANCING FEE. In the event of the origination of any debt
financing obtained by or for the Company (including any refinancing of
debt), the Company will pay to the Advisor a debt financing fee equal to
one percent (1%) of the amount available under such financing.
(g) LIMITATIONS ON PAYMENTS. Notwithstanding the foregoing, no
payments shall be made under Sections 3.01(d), 3.01(e), 4.03(b) or
4.03(c) if, at or prior to the time the payment is due, the Convertible
Shares have been converted into Shares WITHOUT any reduction in the
number of Convertible Shares converted or in the value or number of
Shares to be issued upon such conversion that may be triggered under the
terms of the Convertible Shares to avoid jeopardizing the Company's REIT
status. If, however, the Convertible Shares have been converted into
Shares WITH a reduction in the number of Convertible Shares converted or
in the value or number of Shares issued upon such conversion triggered
under the terms of the Convertible Shares to avoid jeopardizing the
Company's REIT status, (i) no payments otherwise due and payable under
Section 3.01(d) ("OFFSET PAYMENTS") shall be paid until the aggregate
amount of such Offset Payments equals the aggregate value of the Shares
(as determined at the time of such conversion as being the Company Value
divided by the number of Shares outstanding at such time) issued upon
conversion of the Convertible Shares, and (ii) any payments otherwise
due and payable under Sections 3.01(e), 4.03(b) or 4.03(c) shall be
reduced, dollar-for-dollar, by an amount equal to the aggregate value of
the Shares (as determined at the time of such conversion as being the
Company Value divided by the number of Shares outstanding at such time)
issued upon conversion of the Convertible Shares.
3.02 EXPENSES.
(a) In addition to the compensation paid to the Advisor pursuant to
Section 3.01 hereof, the Company shall pay directly or reimburse the
Advisor for all of the expenses paid or incurred by
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the Advisor in connection with the services it provides to the Company
pursuant to this Agreement, including, but not limited to:
(i) Organization and Offering Expenses; provided, however,
that within 60 days after the end of the month in which an
Offering terminates, the Advisor shall reimburse the Company for
any Organization and Offering Expenses reimbursement received by
the Advisor pursuant to this Section 3.02, to the extent that
such reimbursement exceeds 2% of the Gross Proceeds exclusive of
Gross Proceeds from shares sold under the Company's Distribution
Reinvestment Plan. The Advisor shall be responsible for the
payment of all Organization and Offering Expenses in excess of
2% of the Gross Proceeds exclusive of Gross Proceeds from shares
sold under the Company's Distribution Reinvestment Plan;
(ii) Acquisition Expenses incurred in connection with the
selection and acquisition of Assets in an amount equal to up to
0.5% of the Contract Purchase Price of each Asset;
(iii) the actual cost of goods, services and materials used by
the Company and obtained from Persons not affiliated with the
Advisor, other than Acquisition Expenses, including brokerage
fees paid in connection with the purchase and sale of Shares or
other securities;
(iv) interest and other costs for borrowed money, including
discounts, points and other similar fees;
(v) taxes and assessments on income or property and taxes as
an expense of doing business;
(vi) costs associated with insurance required in connection
with the business of the Company or by the Board;
(vii) expenses of managing and operating Assets owned by the
Company, whether payable to an Affiliate of the Company or a
non-affiliated Person;
(viii) all expenses in connection with payments to the Board
for attendance at meetings of the Board and Stockholders;
(ix) expenses associated with Listing or with the issuance
and distribution of Shares and other securities of the Company,
such as Selling Commissions and fees, advertising expenses,
taxes, legal and accounting fees, Listing and registration fees,
and other Organization and Offering Expenses;
(x) expenses connected with payments of Distributions in
cash or otherwise made or caused to be made by the Company to
the Stockholders;
(xi) expenses of organizing, revising, amending, converting,
modifying, or terminating the Company or the Articles of
Incorporation;
(xii) expenses of any third party transfer agent for the
Shares and of maintaining communications with Stockholders,
including the cost of preparation, printing, and mailing annual
reports and other Stockholder reports, proxy statements and
other reports required by governmental entities;
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(xiii) administrative service expenses (including personnel
costs; provided, however, that no reimbursement shall be made
for costs of personnel to the extent that such personnel perform
services in transactions for which the Advisor receives a
separate fee); and
(xiv) audit, accounting and legal fees.
(b) Expenses incurred by the Advisor on behalf of the Company and
payable pursuant to this Section 3.02 shall be reimbursed no less than
quarterly to the Advisor within 60 days after the end of each quarter.
The Advisor shall prepare a statement documenting the expenses of the
Company during each quarter, and shall deliver such statement to the
Company within 45 days after the end of each quarter.
3.03 OTHER SERVICES. Should the Board request that the Advisor or any
director, officer or employee thereof render services for the Company other than
set forth in Section 2.02, such services shall be separately compensated at such
rates and in such amounts as are agreed by the Advisor and the Independent
Directors, subject to the limitations contained in the Articles of
Incorporation, and shall not be deemed to be services pursuant to the terms of
this Agreement.
3.04 REIMBURSEMENT TO THE ADVISOR. The Company shall not reimburse the
Advisor to the extent that Total Operating Expenses (including the Asset
Management Fee), in the four consecutive fiscal quarters then ended (the
"EXPENSE YEAR") exceed (the "EXCESS AMOUNT") the greater of 2% of Average
Invested Assets or 25% of Net Income for such year. Any Excess Amount paid to
the Advisor during a fiscal quarter shall be repaid to the Company.
Reimbursement of all or any portion of the Total Operating Expenses that exceed
the limitation set forth in the preceding sentence may, at the option of the
Advisor, be deferred without interest and may be reimbursed in any subsequent
Expense Year where such limitation would permit such reimbursement if the Total
Operating Expense were incurred during such period. Notwithstanding the
foregoing, if there is an Excess Amount in any Expense Year and the Independent
Directors determine that such excess was justified, based on unusual and
nonrecurring factors which they deem sufficient, the Excess Amount may be
reimbursed to the Advisor. Within 60 days after the end of any fiscal quarter of
the Company for which there is an Excess Amount which the Independent Directors
conclude was justified and reimbursable to the Advisor, there shall be sent to
the Stockholders a written disclosure of such fact, together with an explanation
of the factors the Independent Directors considered in determining that such
Excess Amount was justified. Such determination shall be reflected in the
minutes of the meetings of the Board. The Company will not reimburse the Advisor
or its Affiliates for services for which the Advisor or its Affiliates are
entitled to compensation in the form of a separate fee. All figures used in any
computation pursuant to this Section 3.04 shall be determined in accordance with
generally accepted accounting principles applied on a consistent basis.
ARTICLE IV
TERM AND TERMINATION
4.01 TERM; RENEWAL. Subject to Section 4.02 hereof, this Agreement shall
continue in force until the first anniversary of the date hereof. Thereafter,
this Agreement may be renewed for an unlimited number of successive one-year
terms upon mutual consent of the parties. It is the duty of the Board to
evaluate the performance of the Advisor annually before renewing the Agreement,
and each such renewal shall be for a term of no more than one year.
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4.02 TERMINATION. This Agreement will automatically terminate upon Listing.
This agreement also may be terminated at the option of either party (i)
immediately upon a Change of Control or (ii) upon 60 days written notice without
cause or penalty (in either case, if termination is by the Company, then such
termination shall be upon the approval of a majority of the Independent
Directors). Notwithstanding the foregoing, the provisions of this Agreement
which provide for payment to the Advisor of expenses, fees or other compensation
following the date of termination (I.E., Sections 3.01(e) and 4.03) shall
continue in full force and effect until all amounts payable thereunder to the
Advisor are paid in full.
4.03 PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.
(a) After the Termination Date, the Advisor shall not be entitled to
compensation for further services hereunder except it shall be entitled
to and receive from the Company within 30 days after the effective date
of such termination all unpaid reimbursements of expenses, subject to
the provisions of Section 3.04 hereof, and all contingent liabilities
related to fees payable to the Advisor prior to termination of this
Agreement, provided that the Subordinated Incentive Listing Fee, if any,
shall be paid in accordance with the provisions of Section 3.01(e). Upon
termination, the SILF Note shall become immediately due and payable and
shall be promptly paid by the Company. In the event the Subordinated
Incentive Listing Fee is paid to the Advisor following Listing, no
Performance Fee will be paid to the Advisor pursuant to Sections 4.03(b)
or (c) below.
(b) Upon termination, unless such termination is by the Company
because of a material breach of this Agreement by the Advisor or occurs
upon a Change of Control, the Advisor shall be entitled to receive a
Performance Fee payable in the form of an interest bearing promissory
note (the "PERFORMANCE FEE NOTE") in a principal amount equal to the
product of 0.15 times the amount, if any, by which (i) the Company Value
plus the total Distributions paid to holders of Shares through the
Termination Date, exceeds (ii) the sum of the aggregate Invested Capital
plus the Stockholders' 10% Return through the Termination Date. Interest
on the Performance Fee Note will accrue beginning on the Termination
Date at a rate deemed fair and reasonable by the Independent Directors.
The Company shall repay the Performance Fee Note using the entire Net
Sales Proceeds of each Sale after the Termination Date until the
Performance Fee Note is paid in full, with interest. If the Performance
Fee Note has not been paid in full within five years from the
Termination Date, then the Advisor, its successors or assigns, may elect
to convert the balance of the Performance Fee Note, including accrued
but unpaid interest, into Shares at a price per Share equal to the
average Closing Price of the Shares over the ten trading days
immediately preceding the date of such election if the Shares are Listed
at such time. If the Shares are not Listed at such time, the Advisor,
its successors or assigns, may elect to convert the balance of the
Performance Fee Note, including accrued but unpaid interest, into Shares
at a price per Share equal to the fair market value for the Shares as
determined by the Board based upon the Appraised Value of the Assets on
the date of election.
(c) Notwithstanding the foregoing, if termination occurs upon a
Change of Control, the Advisor shall be entitled to payment of a
Performance Fee equal to the product of 0.15 times the amount, if any,
by which (i) the Company Value plus the total Distributions paid to
holders of Shares through the Termination Date, exceeds (ii) the sum of
the aggregate Invested Capital plus the Stockholders' 10% Return. No
deferral of payment of the Performance Fee may be made under this
Section 4.03(c).
(d) In the event that the Advisor disagrees with the valuation of
Shares pursuant to Section 4.03(b) where the Shares are not Listed, for
purposes of determining the number of shares to be issued to the Advisor
following the Advisor's election to convert the balance of the
Performance Fee Note owed to the Advisor, then the fair market value of
such shares shall be determined by an
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independent appraiser of equity value selected by the Advisor and the
Company. If the Advisor and the Company are unable to agree upon an
expert independent appraiser, then each of the Company and the Advisor
shall name one appraiser and the two named appraisers shall promptly
agree in good faith to the appointment of one such appraiser whose
determination shall be final and binding on the parties. The cost of
such appraisal shall be shared evenly between the Company and the
Advisor.
(e) 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 the Assets,
and documents of the Company then in the custody of the Advisor;
and
(iv) cooperate with the Company and take all reasonable
actions requested by the Company to provide an orderly
management transition.
ARTICLE V
INDEMNIFICATION
5.01 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or losses
arising in the performance of their duties hereunder, and related expenses,
including reasonable attorneys' fees, to the extent such liability, claims,
damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland, the
Articles of Incorporation and the NASAA Guidelines. The foregoing indemnity
shall extend, without limitation, to any claims to the extent relating to any of
the events or outcomes set forth in the Prospectus as possible results, outcomes
or risks associated with the business and investment objectives of the Company.
Notwithstanding the foregoing, the Advisor shall not be entitled to
indemnification or be held harmless pursuant to this Section 5.01 for any
activity which the Advisor shall be required to indemnify or hold harmless the
Company pursuant to Section 5.02. Any indemnification of the Advisor may be made
only out of the net assets of the Company and not from Stockholders.
5.02 INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify and hold
harmless the Company from contract or other liability, claims, damages, taxes or
losses and related expenses including attorneys' fees, to the extent that such
liability, claims, damages, taxes or losses and related expenses are not fully
reimbursed by insurance and are incurred by reason of the Advisor's bad faith,
fraud, misfeasance, misconduct, negligence or reckless disregard of its duties,
but the Advisor shall not be held responsible for any action of the Board in
following or declining to follow any advice or recommendation given by the
Advisor.
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ARTICLE VI
MISCELLANEOUS
6.01 ASSIGNMENT TO AN AFFILIATE. This Agreement may be assigned by the
Advisor to an Affiliate of the Advisor with the approval of a majority of the
Board (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 without the consent of the Advisor, except in the case of an assignment
by the Company to a corporation or other organization which is a successor to
all of the assets, rights and obligations of the Company, in which case such
successor organization shall be bound hereunder and by the terms of said
assignment in the same manner as the Company is bound by this Agreement. This
Agreement shall be binding on successors to the Company resulting from a Change
of Control or sale of all or substantially all the assets of the Company or the
Partnership, and shall likewise be binding upon any successor to the Advisor.
6.02 RELATIONSHIP OF ADVISOR AND COMPANY. The Company and the Advisor are not
partners or joint venturers with each other, and nothing in this Agreement shall
be construed to make them such partners or joint venturers or impose any
liability as such on either of them.
6.03 NOTICES. Any notice, report or other communication required or permitted
to be given hereunder shall be in writing unless some other method of giving
such notice, report or other communication is required by the Articles of
Incorporation, the Bylaws, or accepted by the party to whom it is given, and
shall be given by being delivered by hand or by overnight mail or other
overnight delivery service to the addresses set forth herein:
To the Directors and to the Company: Behringer Harvard Opportunity REIT I, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx. 000
Xxxxxxx, Xxxxx 00000
To the Advisor: Behringer Harvard Opportunity Advisors I LP
00000 Xxxxxx Xxxxxxx
Xxxxx. 000
Xxxxxxx, Xxxxx 00000
Either party shall, as soon as reasonably practicable, give notice in writing to
the other party of a change in its address for the purposes of this Section
6.03.
6.04 MODIFICATION. This Agreement shall not be changed, modified, or amended,
in whole or in part, except by an instrument in writing signed by both parties
hereto, or their respective successors or assignees.
6.05 SEVERABILITY. The provisions of this Agreement are independent of and
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
6.06 CHOICE OF LAW; VENUE. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of Texas, and
venue for any action brought with respect to any claims arising out of this
Agreement shall be brought exclusively in Dallas County, Texas.
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6.07 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing signed by each of the parties
hereto.
6.08 WAIVER. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
6.09 GENDER; NUMBER. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
6.10 HEADINGS. The titles and headings of sections and subsections contained
in this Agreement are for convenience only, and they neither form a part of this
Agreement nor are they to be used in the construction or interpretation hereof.
6.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
6.12 NAME. Behringer Harvard Opportunity Advisors I LP and/or one or more of
its Affiliates has a proprietary interest in the names "Harvard" (for the
businesses engaged in by the Company and its Affiliates) and "Behringer" (for
all purposes). Accordingly, and in recognition of this right, if at any time the
Company ceases to retain Behringer Harvard Opportunity Advisors I LP or an
Affiliate thereof to perform the services of Advisor, the Company will, promptly
after receipt of written request from Behringer Harvard Opportunity Advisors I
LP, cease to conduct business under or use the name "Harvard" or "Behringer" or
any diminutive thereof and the Company shall use its best efforts to change the
name of the Company to a name that does not contain the name "Harvard" or
"Behringer" or any other word or words that might, in the sole discretion of
Behringer Harvard Opportunity Advisors I LP LP, be susceptible of indication of
some form of relationship between the Company and Behringer Harvard Opportunity
Advisors I LP or any Affiliate thereof. Consistent with the foregoing, it is
specifically recognized that Behringer Harvard Opportunity Advisors I LP or one
or more of its Affiliates has in the past and may in the future organize,
sponsor or otherwise permit to exist other investment vehicles (including
vehicles for investment in real estate) and financial and service organizations
having "Harvard" or "Behringer" as a part of their name, all without the need
for any consent (and without the right to object thereto) by the Company or its
Board.
6.13 INITIAL INVESTMENT. The Advisor or one of its Affiliates has contributed
$200,000 (the "INITIAL INVESTMENT") in exchange for the initial issuance of
Shares of the Company. The Advisor or its Affiliates may not sell any of the
Shares purchased with the Initial Investment while the Advisor acts in an
advisory capacity to the Company. The restrictions included above shall not
apply to any Shares acquired by the
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Advisor or its Affiliates other than the Shares acquired through the Initial
Investment. Neither the Advisor nor its Affiliates shall vote any Shares they
now own, or hereafter acquires, in any vote for the election of Directors or any
vote regarding the approval or termination of any contract with the Advisor or
any of its Affiliates.
6.14 OWNERSHIP OF PROPRIETARY PROPERTY. The Advisor retains ownership of and
reserves all Intellectual Property Rights in the Proprietary Property. To the
extent that the Company has or obtains any claim to any right, title or interest
in the Proprietary Property, including without limitation in any suggestions,
enhancements or contributions that Company may provide regarding the Proprietary
Property, the Company hereby assigns and transfers exclusively to the Advisor
all right, title and interest, including without limitation all Intellectual
Property Rights, free and clear of any liens, encumbrances or licenses in favor
of the Company or any other party, in and to the Proprietary Property. In
addition, at the Advisor's expense, the Company will perform any acts that may
be deemed desirable by the Advisor to evidence more fully the transfer of
ownership of right, title and interest in the Proprietary Property to the
Advisor, including but not limited to the execution of any instruments or
documents now or hereafter requested by the Advisor to perfect, defend or
confirm the assignment described herein, in a form determined by the Advisor.
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the date and year first above written.
BEHRINGER HARVARD OPPORTUNITY
REIT I, INC.
By:_____________________________________
Xxxxxx X. Xxxxxxx, III
Executive Vice President
BEHRINGER HARVARD OPPORTUNITY
ADVISORS I LP
By: Harvard Property Trust, LLC,
its General Partner
By:_________________________________
Xxxxxx X. Xxxxxxx, III
Executive Vice President
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