Exhibit 10.6
EXCLUSIVE CLIENT AGENCY AGREEMENT
This EXCLUSIVE CLIENT AGENCY AGREEMENT ("Agreement") is made and entered
into and declared effective as of this 9th day of May, 2005,
BY AND BETWEEN ADVISORS REIT I, INC.
a Maryland Corporation
hereinafter referred to as "CLIENT",
AND XXXX X. XXXXXX ASSOCIATES, INC,
a Kansas Corporation
hereinafter referred to as
"REPRESENTATIVE".
W I T N E S S E T H:
WHEREAS, Representative is a real estate agency licensed in the state of
Kansas possessing certain expertise in the acquisition, sale and leasing of
commercial real estate (the "Expertise"); and
WHEREAS, Client intends to operate as a real estate investment trust in the
business of purchasing, leasing selling and otherwise investing in commercial
real estate; and
WHEREAS Client desires to retain Representative respecting its Expertise
for services related to the acquisition, leasing and sale of commercial real
estate.
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Client and Representative agree as follows:
1. REAL PROPERTY. From time to time, Client desires to purchase commercial
real estate (referred to herein as the "Property" or "Properties") generally
located in the Midwestern and Southwestern United States for up to an
approximate aggregate purchase price of $25,000,000.00 as further described in
that certain Form S-11 Registration Statement filed by Client with the
Securities and Exchange Commission on or about May 12, 2005 (the "Registration
Statement") and consistent with the criteria established hereunder.
2. CLIENT'S AGENT. Client hereby grants to Representative and Representative
hereby accepts the exclusive right to (a) locate and assist Client in locating
appropriate Properties for Client to purchase or otherwise acquire an interest
in; (b) offer Client's Properties for sale to third party buyers; (c) negotiate
the purchase or exchange sale of
Properties on behalf of Client and (d) engage local agents, brokers and other
real estate professionals to assist in Representative's performance of its
obligations hereunder (the "Co-Brokers"). Representative may be offered the
opportunity to act as Client's leasing agent on a case-by- case basis at the
sole discretion of Client.
3. TERM. This Agreement shall be in effect commencing on the closing date of
the "minimum offering" of the shares as described in the Registration Statement
and continue thereafter for a period of twelve (12) months, unless sooner
terminated or extended in accordance with the provisions of this Agreement (the
"Term"). If Representative is the "Procuring Cause" of any transaction involving
Client which closes within six (6) months following the termination or
expiration of this Agreement, Client shall nevertheless pay to Representative
its Commission, if any, due under SECTION 4 herein. Representative shall not
receive any Commission from Client for any transaction closing more than six (6)
months after the expiration or termination of this Agreement.
4. REPRESENTATIVE'S FEE. Representative shall receive payment in the form of a
commission (the "Commission") for its services as follows:
(a) GENERAL. In transactions when a Commission is being offered to
Representative pursuant to a lessor or seller's listing agreement or is being
offered from a cooperating agency or Representative, Client shall not be
responsible for paying any Commission to Representative and Representative shall
look only to such lessor, seller or cooperating agency or Representative for its
Commission, except as herein expressly provided to the contrary.
(b) PURCHASE OR SALE. In any other transaction for the purchase or sale of
a Property where Representative is unable to obtain its Commission in accordance
with SUBSECTION 4 (a) above, Client shall pay to Representative a Commission
equal to the following percentages of the final negotiated purchase price of the
Property which shall not include any administrative, closing, insurance or
professional costs associated with the transaction (the "Purchase Price"): six
percent (6%) of the Purchase Price up to $1,000,000; four percent (4%) of the
portion between $1,000,000 and $2,000,000; and two percent (2%) for that portion
of the Purchase Price above $2,000,000 (the "Standard REIT Commission Rate").
Provided, in any situation in which Representative is acting as Client's
purchaser representative and the commission payable to Representatives from any
cooperating seller's broker is less than one half (1/2) of the amount that
Representative would receive if the Standard REIT Commission Rate had applied,
then Client shall at closing pay Representative the difference between such
amounts.
(c) (Notwithstanding any of the foregoing in this SECTION 4, no commission
shall be due or payable in a given transaction unless and until all of the
following events have occurred:
i. Representative has procured a ready, willing and able buyer,
seller,
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lessee, or tenant (i.e., tenant in a municipally-financed project), as the case
may be;
ii. Client and the applicable seller, buyer, lessor or lessee have
executed and delivered a contract of sale, purchase or lease, as the case may
be, the terms and conditions of which are acceptable to Client, in Client's sole
discretion; and
iii. The closing of the sale, purchase or lease including Seller's
receipt of any cash due at closing has occurred.
(d) Representative's Commission shall be the sole compensation due and
owing to Representative. Representative shall not be entitled to reimbursement
for any expenses or any other costs Representative incurs related to or
involving the performance of its obligations hereunder unless approved by
Client.
(e) Payment of any commission, referral fee or other compensation to any
Co-Brokers shall be the responsibility of Representative.
5. OTHER BUYERS/TENANTS. Client acknowledges that other potential
buyers/tenants may consider, make offers on, or purchase through Representative
similar properties as Client seeks. Client consents to Representative's
representation of such potential buyers/tenants during the term of this
Agreement and after its expiration. Provided, Representative shall not disclose
to anyone other than the proposed seller, buyer, or lessee Client's identity,
Client's interest in any Property, or the material terms of any offer made by
Client without Client's prior written consent.
6. DUTIES AND RESPONSIBILITIES. Representative shall perform the terms of this
Agreement, promote the interests of Client with the utmost good faith, loyalty
and fidelity and shall present all written offers, counter-offers and backup
offers to Client in a timely manner. In satisfaction of his obligations under
this Agreement and the Kansas brokerage relationships in real estate transaction
act, Representative shall provide all information requested by Client in the
form and manner requested by Client. Representative shall advise Client to
obtain expert advice as to material matters about which Representative knows but
the specifics of which are beyond Representative's Expertise. Representative
shall disclose to Client all adverse material information actually known by
Representative, including (a) any material limitation on the Client's ability to
perform under the terms of the contract or lease and (b) any facts known by
Representative that contradict any information included in a written report
regarding the physical condition of the property which has been prepared by a
qualified third party and provided to Client. Representative shall also account
to Client for all money or property received by it on account of Client in a
timely manner. It is understood that Client's targeted capitalization rate for
its portfolio is nine percent (9%) and targeted price for properties is in the
$3 Million to $5 Million price range. In calculating such targeted rate,
Representative acknowledges that such rates on a property-by-property basis
shall be calculated in accordance with industry standards which are deemed to
include:
(a) costs of property shall include all acquisition and start-up costs,
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including but not limited to, price to seller, all commissions paid by
Client, all due diligence expenses, tenant improvements, lease-up
costs, and securities compliance costs directly attributable to the
proposed acquisition (for example, costs of filing applicable Form 8-K
with Securities and Exchange Commission); and
(b) net operating income shall be calculated based upon gross rental
income after taking into effect all direct costs attributable to the
on-going management and ownership of the property, including but not
limited to, allowance for vacancy, direct operating expenses, property
management fees, maintenance expenses and allowances, repairs, reserve
for tenant improvements or repairs, if applicable, and leasing
commissions.
Client shall refer to Representative the identities of all persons who may
solicit Client for the purposes of a potential real estate transaction, it being
understood that Representative shall act as the intermediary in all potential
real estate transactions.
7. REPRESENTATIVE'S REPRESENTATIONS AND WARRANTIES. Representative represents
and warrants to Client that (a) it will use its best efforts to obtain
appropriate Properties, buyers, sellers, lessors and lessees for Client; (b) it
will act in accordance with the highest professional standards, regulations, and
canons, and in compliance with all applicable national, federal, state, and
municipal laws, regulations, codes, ordinances, and orders, as well as any
rules, orders or regulations promulgated by any other official body whether
public or private having power of oversight or jurisdiction; (c) there are no
obligations, commitments, or impediments of any kind that will limit or prevent
Representative's performance of its services; (d) all persons connected with
Representative who are required to be licensed are duly licensed; (e) it will be
liable for gross negligence or intentional misconduct, if any, relative to the
performance of its services; (f) it will perform its services in the most
expeditious and economical manner consistent with the interests of Client; and
(g) Xxxxxx X. Xxxxxx will at all times personally perform and/or oversee the
performance of, the obligations of Representative hereunder.
8. OWNERSHIP OF CLIENT'S SECURITIES BY REPRESENTATIVE. Representative,
understanding that it and certain of its employees and officers will have access
to secret and confidential information having a direct relationship on the
ongoing and future profitability, financial condition and performance of
Client's business agree that during the Term of this Agreement and for six (6)
months thereafter, neither Representative nor any of its shareholders, officers,
directors, employees or their immediate family members ("Representative
Affiliated Parties") shall hold, buy, sell or otherwise trade in any security of
Client, absent Client's prior written consent. Representative shall indemnify
Client against any claim or proceeding arising out of the improper use of
"insider information" (as defined by state or federal securities laws) or
Confidential Information (as hereinafter defined) or any other information
otherwise obtained by Representative Affiliated Parties arising out of
Representative's relationship with Client.
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9. REPRESENTATIVE'S TIMELY PROVISION OF INFORMATION TO CLIENT. Representative
understands that Client, as a public company, has certain periodic reporting
requirements it must meet with various governmental entities such as the
Securities and Exchange Commission and various state securities regulators.
Representative covenants that upon request from Client, Representative shall
timely provide any information available to it or otherwise in its possession
requested by Client in satisfaction of Client's periodic reporting obligations.
10. TRANSACTION REPRESENTATIVE. Client understands that Representative may show
Client Properties from sellers whom Representative otherwise represents. In such
event, Representative shall notify both Client and the other party of its
intention to represent neither, but to assist both Client and the other party as
a "Transaction Representative." Client also understands that Representative may
show other buyers or tenants information on various properties for sale or
lease. Prior to Representative being accepted by Client as a Transaction
Representative in a specific transaction, an addendum to this Agreement
describing the relationship among the parties thereto shall be executed and
attached hereto.
11. REPRESENTATIVE CLIENT RELATIONSHIP. The relationship between Client and
Representative is that of independent contractors. Nothing contained in this
Agreement or in the relationship between Client and Representative shall be
deemed to constitute a partnership, joint venture, or any other relationship
except as expressly defined by the terms of this Agreement. Representative's
authority is specifically limited to performing services in accordance with the
terms of this Agreement. Representative does not have any authority to execute
any agreement for or on behalf of Client or to otherwise bind Client in any way
and shall have no authority to incur any expenses on Client's behalf without
Client's prior written consent. Representative shall inform all prospective
sellers, buyers, lessees and their respective agents and subagents with whom
Representative may negotiate pursuant to the Agreement that Representative acts
only as Client's agent.
12. CONFIDENTIALITY.
(a) GENERAL. Client and Representative acknowledge that the services to be
performed by Representative pursuant to this Agreement are exclusive and that,
as a result of Representative's engagement, Representative will be in a
relationship of confidence and trust with Client and will come into possession
of certain "Confidential Information" either (1) owned or controlled by the
Client (2) in the possession of Client and belonging to third parties, or (3)
conceived, originated, or developed, in whole or in part, by Representative on
Client's behalf. As used herein "Confidential Information" includes but is not
limited to any confidential or proprietary business, personnel or financial
information of Client or information pertaining to any current or prospective
Properties or other business relationships or ventures involving Client, whether
such information is the Representative's work product, in written, graphic, oral
or other tangible or intangible forms, including but not limited to records,
data, diagrams,
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surveys, business or marketing plans, studies, analyses, projections and
reports, communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product). Any information regarding or
arising out of the relationship between Representative and Client that is not
readily available to the public shall be considered secret, confidential and
proprietary, unless Client advises Representative otherwise in writing.
(b) NONDISCLOSURE. Representative agrees that it will not, without the
prior written consent of Client, directly or indirectly use or disclose
Confidential Information to any person, during or after the term of this
Agreement except as may be necessary in the ordinary course of performing
Representative's duties under this Agreement. Representative will keep the
Confidential Information in strictest confidence and trust. This SUBSECTION 12
(b) shall apply indefinitely, both during and after the term of this Agreement.
(c) SURRENDER UPON TERMINATION. Representative agrees that in the event of
the termination of this Agreement by either party for any reason, Representative
will immediately deliver to Client all property or information belonging to
Client including all documents and materials of any nature pertaining to
Representative's work with Client, and will not take any documents or materials
of any description, or any reproduction thereof of any description, containing
or pertaining to any Confidential Information. In lieu of returning same, upon
receiving satisfactory written assurances as determined in Client's sole
discretion, Representative may destroy same. It is understood that
Representative is free to use information that is in the public domain (not as a
result of a breach of this Agreement).
13. RIGHT TO INJUNCTIVE RELIEF. Representative acknowledges that Client may
suffer irreparable injury, not readily susceptible of valuation in monetary
damages, if Representative breaches this Agreement. Accordingly, Representative
agrees that Client will be entitled to injunctive relief against Representative
for any breach or prospective breach of this Agreement. Client may obtain such
injunctive relief, without bond, in any federal or state court of competent
jurisdiction sitting in the state of Kansas and Representative hereby
irrevocably submits to the jurisdiction of such court(s).
14. INDEMNIFICATION. Client and Representative each agree to indemnify and hold
harmless the other on account of any loss or damage arising out of their
respective nonperformance or breach of this Agreement, including but not limited
to attorney's fees reasonably incurred by either party, provided such loss or
damage does not arise out of the party's negligence or intentional acts or
omissions.
15. TERMINATION. Client may cancel or terminate this Agreement at any time
during the Term:
(a) effective upon written notice for any default of this Agreement by
Representative under any of the following circumstances:
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(i) if Representative shall become insolvent or make a general
assignment for the benefit of creditors; or
(ii) if Representative files a petition under any provision of the
Federal Bankruptcy Act; or
(iii) if Representative fails or refuses to perform or otherwise
observe any obligation, covenant, or condition of this Agreement and do not cure
such breach within thirty (30) days of receiving written notice of default; or
(b) upon thirty (30) days notice by Client if Xxxxxx X. Xxxxxx dies or
becomes disabled; or
(c) upon thirty (30) days notice by Client, commencing at any time after
the initial three (3) months of the term of this Agreement.
For the purposes of this paragraph, Xxxxxx X. Xxxxxx shall be deemed to be
"disabled" if Client is informed by management of Representative that Xxxxxx X.
Xxxxxx is disabled or if Client determines in good faith that a physical or
mental condition has occurred and can reasonably be expected to persist which,
in reasonable opinion of Client, has rendered Xxxxxx X. Xxxxxx unable to perform
the duties of President of Representative for a period of thirty (30) calendar
days or more
16. ASSIGNMENT. Absent Client's prior written consent, except for commercial
relationships with Co-Brokers as contemplated by XXXXXXX 0, xxxx of the rights,
interests, or obligations created by this Agreement may be assigned,
transferred, or delegated in whole or in part by Representative, and any such
purported assignment, transfer, or delegation shall be void.
17. DISCRIMINATION. Client and Representative shall not unlawfully discriminate
against any prospective buyer, seller or lessee because of the race, religion,
color, sex, marital status, national origin, ancestry, disability or familial
status of such person.
18. MODIFICATION. No obligation, covenant, agreement, term, or condition of
this Agreement, or shall be waived, altered, or modified unless in writing and
signed by both parties.
19. WAIVER. No failure by Client to insist upon the strict performance of any
obligation, covenant, agreement, term or condition of this Agreement or to
exercise any right or remedy available upon a breach or any subsequent breach of
such obligation, covenant, agreement, term, or condition, shall act as a waiver
of any rights or remedies under this Agreement. No waiver of any breach shall
affect or alter this Agreement, but each and every obligation, covenant,
agreement, term, and condition of this Agreement shall continue in full force
and effect with respect to any other then-existing or
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subsequent breach of this Agreement.
20. OTHER PROFESSIONAL ADVICE. Representative makes no representation or
warranty with respect to the advisability, or the legal or tax effect of, any
transaction contemplated by Client. Representative agrees to comply fully with
the recommendations of Client's legal and/or tax counsel. Representative
warrants that it is not an expert and therefore Client shall not rely upon
Representative's Expertise in matters relating to law, tax, financing,
surveying, structural conditions, hazardous materials and engineering.
21. GOVERNING LAW. The laws of the State of Kansas shall govern the
validity, enforcement, and interpretation of this Agreement. To the extent any
provision of K.S.A. Section 58-3034 et seq., or any other state's similar law,
to the extent applicable, contradicts this Agreement, such law shall control.
22. ENTIRE AGREEMENT/COUNTERPARTS. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof and may
be executed simultaneously in several counterparts, each of which shall be
deemed an original and
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all of which together shall constitute one and the same agreement.
WHEREFORE, the parties have executed and entered into this Agreement as of
the date first stated herein.
XXXX X. XXXXXX ASSOCIATES, INC. ADVISORS REIT I, INC.
BY: Xxxxxx X. Xxxxxx /s/ By: Xxxxx X. Xxxxxxxxxxx /s/
---------------------------------- --------------------------------
Xxxxxx X. Xxxxxx, President Xxxxx X. Xxxxxxxxxxx, President
"Representative" "Client"
Date: May 9. 2005 Date: May 9. 2005
XXXX X. XXXXXX ASSOCIATES, INC. ADVISORS REIT I, INC.:
000 Xxxxx Xxxxxx Xxx. 000, 8301 E. 21st St.
Wichita, KS 67202 Xxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
