FORM OF SUB-ADVISORY AGREEMENT
Exhibit 10.6
FORM
OF
This SUB-ADVISORY AGREEMENT (as may be amended from time to time, this “Agreement”) is
entered into as of [ ], 2009 by and among AllianceBernstein L.P. (the “Advisor”),
Greenfield Advisors, LLC (the “Sub-Advisor”) and Foursquare Capital Management, LLC, a
Delaware limited liability company (the “Manager”).
WHEREAS, Foursquare Capital Corp., a Maryland real estate investment trust (together with all
of its subsidiaries, the “Company”), has been established to invest in a portfolio of real
estate related assets, including certain types of mortgage-backed securities; and
WHEREAS, the Manager has agreed to provide management services to the Company pursuant to a
management agreement, dated as of [ ], 2009 (as may be amended from time to time, the
“Management Agreement”), between the Company and the Manager; and
WHEREAS, the Manager has retained the Advisor, pursuant to the Advisory Agreement, dated as of
[ ], 2009 (as may be amended from time to time, the “Advisory Agreement”), to
provide investment advisory and certain other portfolio services to the Company; and
WHEREAS, the Advisor now wishes to retain the Sub-Advisor to provide certain sub-advisory
services in connection with the Advisor’s investment advisory activities for the Manager, and the
Sub-Advisor is willing to provide such services to the Advisor as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto
as herein set forth, the parties covenant and agree as follows:
1. Definitions. For purposes of this Agreement, terms used and not defined herein
shall have the meanings specified in the Management Agreement or the Advisory Agreement, as
applicable. The following terms shall have the indicated meanings:
“Advisor” has the meaning set forth in the preamble.
“Advisor Indemnified Party” has the meaning set forth in Section 8(e) of this
Agreement.
“Advisory Agreement” has the meaning set forth in the recitals.
“Agreement” has the meaning set forth in the preamble.
“Bankruptcy” means, with respect to any Person, (a) the filing by such Person of a
voluntary petition seeking liquidation, reorganization, arrangement or readjustment, in any form,
of its debts under Title 11 of the United States Code or any other federal, state or foreign
insolvency law, or such Person filing an answer consenting to or acquiescing in any such petition,
(b) the making by such Person of any assignment for the benefit of its creditors, (c) the
expiration of 60 days after the filing of an involuntary petition under Title 11 of the United
States Code, an application for the appointment of a receiver for a material portion of the assets
of such Person, or an involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other federal, state or foreign insolvency law,
provided that the same shall not have been vacated, set aside or stayed within such 60 day
period, or (d) the entry against such Person of a final and non-appealable order for relief under
any bankruptcy, insolvency or similar law now or hereinafter in effect.
“Board of Directors” has the meaning set forth in the Manager LLC Agreement.
“Cause”
has the meaning set forth in Section 9(d) of this Agreement.
“Company” has the meaning set forth in the recitals.
“Conduct Policies” has the meaning set forth in Section 7(f) of this Agreement.
“Confidential Information” shall mean any models, strategies or information relating
to the organization, finances, business, transactions or affairs of the Company, the Manager, the
Advisor, any Sub-Advisor, the Consultant or any of their respective Affiliates.
“Consultant” has the meaning set forth in the Manager LLC Agreement.
“Eligible Professional” means a person that is a senior investment professional who is
an officer or employee of the Sub-Advisor.
“Governing Instruments” has the meaning set forth in the Manager LLC Agreement.
“Indemnitee” has the meaning set forth in Section 8(f) of this Agreement.
“Indemnitor” has the meaning set forth in Section 8(h) of this Agreement.
“Investment Committee” has the meaning specified in the Management Agreement.
“Manager” has the meaning set forth in the preamble.
“Management Agreement” has the meaning set forth in the recitals.
“Manager Indemnified Party” has the meaning set forth in Section 8(f) of this
Agreement.
“Manager LLC Agreement” means the Amended and Restated Limited Liability Company
Agreement of the Manager dated as of [ ], 2009, as may be further amended.
“NYSE” has the meaning set forth in the Manager LLC Agreement.
“Sub-Advisor” has the meaning set forth in the preamble.
“Sub-Advisory Fee” has the meaning set forth in Section 5 of this Agreement.
“Sub-Advisor Indemnified Party” has the meaning set forth in Section 8(a) of this
Agreement.
“Sub-Advisory Termination Fee” has the meaning set forth in Section 5 of this
Agreement.
“Voting Member” has the meaning specified in the Management Agreement.
2. Appointment of the Sub-Advisor. The Advisor hereby appoints the Sub-Advisor to
perform the services described herein. The Sub-Advisor shall provide the Advisor with such
services as are set forth in Section 4, as necessary or appropriate to assist the Advisor with
respect to its proper supervision and management of the assets of the Company.
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3. Investment Committee.
(a) The Sub-Advisor agrees that, in connection with the establishment by the Manager of the
Investment Committee on the date hereof, the Sub-Advisor shall designate Xxxxxx X. Xxxxx, as its
Eligible Professional to serve as a Voting Member on the Investment Committee and to perform all
duties thereof as set forth in the Management Agreement.
(b) The Sub-Advisor may, at any time, by notice in writing to each of the Advisor and the
Manager, designate a different Eligible Professional to serve as the Sub-Advisor’s Voting Member on
the Investment Committee in accordance with the provisions of the Management Agreement. If the
Sub-Advisor designates a different Eligible Professional to serve as its Voting Member, the person
previously designated as the Sub-Advisor’s Voting Member shall thereupon cease to be a Voting
Member and will no longer serve on the Investment Committee. Subject to Section 3(c), an Eligible
Professional designated by the Sub-Advisor shall be and remain a Voting Member on the Investment
Committee until a termination of this Agreement.
(c) The Sub-Advisor acknowledges that upon any termination of this Agreement or the occurrence
of any event set forth in Section 9(d), the person that the Sub-Advisor had designated as a Voting
Member of the Investment Committee shall no longer be a Voting Member and the Sub-Advisor shall not
be entitled to designate a replacement.
4. Services Provided by the Sub-Advisor.
(a) The Sub-Advisor shall or shall cause its Affiliates, at the request of the Advisor, assist
the Advisor in the Advisor’s sourcing, acquiring, managing and disposing of residential and
commercial real estate properties, loans and securities for the Company and shall, or shall cause
its Affiliates, to provide the Advisor with additional analysis with respect to asset acquisition,
asset management and disposition strategies for the Company. The Sub-Advisor shall also, or shall
cause its Affiliates, if requested, assist the Advisor with the review of due diligence,
surveillance, credit risk management, valuation, special servicing and servicer matters and in
evaluating cash flows from residential and commercial real estate assets, overlaying loan terms and
stressing various models and assumptions in connection with the Company’s investments.
(b) Each party hereto acknowledges that, although the Sub-Advisor may elect to recommend
investments and Co-Investment opportunities for the Company to the Advisor or the Investment
Committee (by means of the Sub-Advisor’s designated Voting Member), as well as co-invest in such
Co-Investment opportunities with the Company, neither the Sub-Advisor nor any of its Affiliates
shall be required to do so.
(c) Each party hereto acknowledges that none of the officers or employees of the Sub-Advisor
or its Affiliates will be dedicated exclusively to the performance of the Sub-Advisor’s duties
under this Agreement and that such officers and employees of the Sub-Advisor or its Affiliates
shall devote such time to the performance of the Sub-Advisor’s duties hereunder as the Sub-Advisor
determines to be reasonably necessary for the performance of such services.
(d) Notwithstanding anything contained herein to the contrary, the Sub-Advisor may cause any
services that would ordinarily be performed by a third party (including the services listed in
Section 4(a)) to be rendered by the personnel of the Sub-Advisor or its Affiliates. In such
circumstances (subject as specified above and to Section 16 below) upon request by the Sub-Advisor,
the Advisor shall instruct the Company to directly pay or reimburse the Sub-Advisor for the cost of
such services (and the Advisor shall have no obligation therefor); provided that such costs
and reimbursements are no greater
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than those which would be payable to outside professionals or consultants engaged to perform
such services pursuant to agreements negotiated on an arm’s length basis.
(e) In performing its duties under this Section 4, the Sub-Advisor (and its Affiliates) shall
be entitled to rely reasonably on qualified experts and professionals (including, without
limitation, accountants, legal counsel and other service providers) hired by the Sub-Advisor (and
its Affiliates) at its expense or, if such expenses are within the then applicable expense budget
of the Company or are otherwise reimbursable to the Manager, the Advisor or the Sub-Advisors
pursuant to the Management Agreement, at the Company’s sole cost and expense.
5. Compensation of the Sub-Advisor.
(a) For the services to be rendered, the Advisor shall pay to the Sub-Advisor each quarter a
sub-advisory fee computed in accordance with the terms of Schedule A attached hereto (the
“Sub-Advisory Fee”), with such Sub-Advisory Fee (which may include the common stock of the
Company and the cash/stock ratio of which shall be the same for the Advisor Fee, the Sub-Advisory
Fee and the Consultant Fee paid respectively to the Advisor, the Sub-Advisors and the Consultant)
to be paid on the relevant Fee Payment Date (as defined in Schedule A hereto). The transfer by the
Advisor (or the Manager on its behalf) to the Sub-Advisor of any of the Company’s common stock as
part of the Sub-Advisory Fee shall be on the same basis as described with respect to the Incentive
Fee to be paid to the Manager pursuant to Section 9(b) of the Management Agreement and shall, at
all times, be subject to the following: (1) the ownership of such shares by the Sub-Advisor does
not violate the limit on ownership of the Company’s common stock set forth in the Company’s
Governing Instruments, after giving effect to any waiver from such limit that the Board of
Directors may grant to the Sub-Advisor in the future, (2) the transfer of such shares by the
Advisor (or the Manager acting on its behalf) to the Sub-Advisor complies with all applicable
restrictions under U.S. federal securities laws and the rules of the NYSE, and (3) the Sub-Advisor shall have substantially the same registration rights and obligations
with respect to such shares as shall be provided to the Manager pursuant to the agreement referred
to in Section 9(b)(i)(3) of the Management Agreement. If the Sub-Advisor
serves for less than the whole of any period specified, its compensation shall be prorated
accordingly. In addition, if, at any time the Manager receives payment of the Termination Fee (as
defined in the Management Agreement), the Advisor shall pay to the Sub-Advisor the “Sub-Advisor
Termination Fee” computed in accordance with the terms of Schedule A attached hereto.
(b) Each party hereto agrees that all amounts payable to the Sub-Advisor by the Advisor or the
Manager pursuant to this Agreement or the Management Agreement, respectively, during the term of
this Agreement, including, without limitation, the Sub-Advisory Fee, any Sub-Advisor Termination
Fee or any reimbursement of eligible expenses to the Sub-Advisor hereunder, shall, until prior
written notice is provided to the contrary by the Sub-Advisor to the other parties hereto, be paid
instead by the Manager (acting at all times in accordance with the Manager LLC Agreement, including
the obtaining of any required approvals or consents pursuant thereto) directly to the Sub-Advisor
and such outstanding amounts owing to the Sub-Advisor by the Manager or the Advisor during the term
of this Agreement shall be deemed to be satisfied upon such payment by the Manager to the
Sub-Advisor and, likewise, any of the foregoing amounts or payments made by the Manager on behalf
of the Advisor hereunder shall reduce and be a credit against any corresponding fees or expenses
(as the case may be) payable to the Advisor by the Manager under the Advisory Agreement.
(c) In the event that a Bankruptcy of the Advisor occurs, to the extent that any compensation
or amounts relating to reimbursements of eligible expenses to Sub-Advisor that would have been
payable by the Advisor to the Sub-Advisor remains unpaid, or the Advisor cannot pay such
compensation or amounts to the Sub-Advisor as a result of such Bankruptcy, the Manager rather than
the Advisor shall, to the extent permitted by applicable law, be obligated to make such payments to
the Sub-Advisor.
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6. Representations and Warranties of the Parties. Each party to this Agreement
covenants, represents and warrants to each other party as of the date hereof that:
(a) it is a limited partnership or limited liability company, as the case may be, duly
organized and validly existing under the laws of the state of its formation and has full capacity
and authority to enter into this Agreement and to perform its obligations and duties and to provide
the services required of it under this Agreement;
(b) this Agreement has been duly and validly authorized, executed and delivered on behalf of
such party and is a valid and binding agreement of such party enforceable in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting rights of creditors, and the party will deliver to any other party hereto such
evidence of such authority as such other party may reasonably request, whether by way of a
certified resolution or otherwise;
(c) the terms of this Agreement do not violate any material obligation by which such party is
bound, whether arising by contract, operation of law or otherwise, the violation of which would
have a material adverse effect on the Company or the Manager or the ability of such party to
perform its obligations and duties and to provide the services required of it under this Agreement;
(d) it has obtained or made all material governmental approvals or registrations or licenses
required under applicable law to authorize the performance of its obligations under this Agreement,
except for failures to be so approved, registered or licensed that could not, individually or in
the aggregate, have a material adverse effect on the Company or the Manager or on the ability of
such party to perform its obligations and duties and to provide the services required of it under
this Agreement, and it is not aware of any legal or financial impediments to performing its
obligations under this Agreement that it has not disclosed in writing to the other party;
(e) it has or shall promptly obtain all required trained personnel that it reasonably
determines to be necessary or appropriate to perform its obligations under this Agreement;
(f) it owns or is licensed or sublicensed or has a right to use software programs and data
processing hardware that are necessary for it to perform its obligations under this Agreement, and
to the best of its knowledge such software programs and data processing hardware do not infringe
upon or constitute an infringement on or misappropriation of any valid United States patent,
copyright, trademark, trade secret or other proprietary rights of any third party. During the term
of this Agreement, to the extent that it does not own, license, sublicense or have a contractual
right to such software necessary to perform its obligations under this Agreement, it will purchase,
license, sublicense or obtain right to use such software at its own expense;
(g) to its knowledge, it is not on any Federal excluded parties, debarment, or suspension
lists;
(h) it is not subject to any pending or, to its knowledge, contemplated current enforcement
actions that are likely to materially impair its ability to provide the services contemplated under
this Agreement, or that are likely to pose a material reputational risk to the Company or each
other party in performing its obligations under this Agreement; and
(i) if doing business with the Treasury or another Federal agency, it is not, and will not
during the term of this Agreement be, in any kind of probationary status, and is, and will during
the term of this Agreement be, addressing and resolving any identified deficiencies in performance.
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7. Additional Representations and Warranties and Covenants.
(a) The Advisor represents and warrants to each other party hereto as of the date hereof and
as of each day during the term of this Agreement that it is a duly registered investment adviser
with the Securities and Exchange Commission pursuant to the Advisers Act.
(b) The Advisor covenants to the Sub-Advisor that during the term hereof:
(i) it will comply in all material respects with its obligations under the
Advisory Agreement; and
(ii) it will promptly provide to the Sub-Advisor all information, reports and
materials provided by the Advisor to the Company or to the Manager or received by
the Advisor pursuant to the Advisory Agreement in connection with the Company and/or
its business, operations or investments or potential investments and all material
communications between the Advisor and the Treasury.
(c) The Sub-Advisor covenants to each other party hereto that it will maintain during the term
of this Agreement, directly or indirectly through any Affiliates performing the services hereunder,
the necessary operational resources and capacity to perform in all material respects the services
contemplated to be performed by it pursuant to Section 4(a).
(d) The Manager represents and warrants to each other party hereto as of the date hereof that
it has not conducted any activities or incurred any liabilities or obligations, except in each case
in connection with the Company and as disclosed in writing to the Sub-Advisor.
(e) The Manager covenants to each other party hereto that during the term of this Agreement,
(i) it will comply in all material respects with all of its obligations under the Management
Agreement and the Advisory Agreement, (ii) it will promptly provide to the Sub-Advisor all
information, reports and materials provided by the Manager to the Company or received by the
Manager pursuant to the Management Agreement or otherwise in connection with the Company and/or its
business, operations or investments or potential investments and all material communications
between the Manager and the Treasury, and (iii) it will (acting at all times in accordance with the
Manager LLC Agreement, including the obtaining of any required approvals or consents pursuant
thereto, and to the extent permitted by applicable law) comply with its payment obligation to the
Sub-Advisor set forth in Section 5(b).
(f) The Sub-Advisor acknowledges receipt of the Company’s Code of Business Conduct and Ethics
and Policy on Xxxxxxx Xxxxxxx and Communications Policy (collectively, the “Conduct
Policies”) and the Sub-Advisor agrees (i) to implement policies and procedures reasonably
designed to inform employees of the Sub-Advisor and its Affiliates who provide services to the
Advisor, the Manager or the Company of the Conduct Policies and to ensure that such employees are
in substance held to at least the standards of conduct to those set forth in the Conduct Policies
and (ii) to comply with the Conduct Policies in its performance of the services hereunder or such
comparable policies as shall in substance hold it to at least the standards of conduct set forth in
the Conduct Policies.
8. Limits of Responsibility; Indemnification.
(a) The Sub-Advisor assumes no responsibility under this Agreement other than to render the
services called for under this Agreement in good faith and shall not be responsible for any action
of the Manager, the Advisor or the Company in following or declining to follow any advice or
recommendations of the Sub-Advisor. The Sub-Advisor and any person controlling or controlled by or
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under common control with the Sub-Advisor and any Affiliates of the foregoing (including the
Sub-Advisor’s Voting Member on the Investment Committee) and their respective officers,
stockholders, members, managers, partners, personnel and directors and any Person who was any of
the foregoing at any time during the term of this Agreement (each, a “Sub-Advisor Indemnified
Party”) will not be liable to the Advisor, the Manager or the Company for any investment
decision or any acts or omissions by any such Person (including, without limitation, trade errors
that may result from ordinary negligence, such as errors in the investment decision making process
or in the trade process) performed pursuant to or in accordance with this Agreement, except by
reason of acts or omissions constituting bad faith, willful misconduct, gross negligence or
reckless disregard of the Sub-Advisor’s duties under this Agreement as determined by a final
non-appealable order of a court of competent jurisdiction.
(b) The Advisor shall, to the fullest extent lawful, reimburse, indemnify and hold each
Sub-Advisor Indemnified Party harmless of and from any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever (including attorneys’ fees) in
respect of or arising, directly or indirectly, from any acts or omissions of the Advisor
constituting the Advisor’s bad faith, willful misconduct, gross negligence or reckless disregard of
the Advisor’s duties under this Agreement as determined by a final non-appealable order of a court
of competent jurisdiction, provided that the Advisor shall not have any obligation to
reimburse or indemnify any Sub-Advisor Indemnified Party for any expense, loss, damage, liability,
demand, charge or claim resulting from actions or inactions of any third party, including, without
limitation, the Manager or the Company.
(c) The Manager shall, to the fullest extent lawful, reimburse, indemnify and hold each
Sub-Advisor Indemnified Party harmless of and from any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever (including attorney’s fees) in
respect of or arising, directly or indirectly, from any acts or omissions of the Manager
constituting the Manager’s bad faith, willful misconduct, gross negligence or reckless disregard of
the Manager’s duties under the Management Agreement as determined by a final non-appealable order
of a court of competent jurisdiction, provided that the Manager shall not have any
obligation to reimburse or indemnify any Sub-Advisor Indemnified Party for any expense, loss,
damage, liability, demand, charge or claim resulting from actions or inactions of any third party,
including, without limitation, the Advisor or the Company.
(d) Notwithstanding the foregoing and any other provision to the contrary contained in this
Agreement, if the Company is providing an indemnity to any Sub-Advisor Indemnified Party with
respect to the same claim as any Sub-Advisor Indemnified Party may claim indemnification for under
Sections 8(b) or 8(c), the Sub-Advisor Indemnified Party shall be required to first look for
satisfaction of its claims under the indemnity provided by the Company and the provisions of
Sections 8(b) or 8(c) shall not apply with respect to such claim, but only to the extent that such
other indemnity covers such claim and only up to the amount the Sub-Advisor Indemnified Party
recovers thereunder.
(e) The Sub-Advisor shall, to the fullest extent lawful, reimburse, indemnify and hold the
Advisor, its officers, stockholders, members, managers, partners, directors, personnel and any
Person controlling or controlled by or under common control with the Advisor and any Affiliates of
the foregoing (including the Advisor’s Voting Member on the Investment Committee) and any Person
who was any of the foregoing at any time during the term of this Agreement, (each, an “Advisor
Indemnified Party”), harmless of and from any and all expenses, losses, damages, liabilities,
demands, charges and claims of any nature whatsoever (including attorneys’ fees) in respect of or
arising from acts of the Sub-Advisor constituting bad faith, willful misconduct, gross negligence
or reckless disregard of its duties under this Agreement as determined by a final non-appealable
order of a court of competent jurisdiction.
(f) The Sub-Advisor shall, to the fullest extent lawful, reimburse, indemnify and hold the
Manager, its officers, stockholders, members, managers, partners, directors, personnel and any
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Person controlling or controlled by or under common control with the Manager and any
Affiliates of the foregoing and any Person who was any of the foregoing at any time during the term
of this Agreement (each, a “Manager Indemnified Party” and together with each Advisor
Indemnified Party and each Sub-Advisor Indemnified Party, an “Indemnitee”), harmless of and
from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature
whatsoever (including attorneys’ fees) in respect of or arising from acts of the Sub-Advisor
constituting bad faith, willful misconduct, gross negligence or reckless disregard of its duties
under this Agreement as determined by a final non-appealable order of a court of competent
jurisdiction.
(g) Notwithstanding the foregoing and any other provisions to the contrary contained in this
Agreement, the Sub-Advisor shall not have any obligation to reimburse or indemnify any Advisor
Indemnified Party or Manager Indemnified Party for any expense, loss, damage, liability, demand,
charge or claim resulting from the direct or indirect actions or inactions of any third party,
including, without limitation, the Advisor, the Manager or the Company. Notwithstanding the
foregoing and any other provisions to the contrary in this Agreement, if the Company is providing
an indemnity to any Advisor Indemnified Party or Manager Indemnified Party with respect to the same
claim as any Advisor Indemnified Party or Manager Indemnified Party may claim indemnification for
under Sections 8(e) or 8(f), as the case may be, the Advisor Indemnified Party or the Manager
Indemnified Party, as the case may be, shall be required to first look for satisfaction of their
claims under the indemnity provided by such other party and the provisions of Sections 8(e) or
8(f), as the case may be, shall not apply with respect to such claim, but only to the extent that
such other indemnity covers such claim and only up to the amounts the Advisor Indemnified Party or
the Manager Indemnified Party, as the case may be, recovers thereunder.
(h) Each Indemnitee will promptly notify the party against whom an indemnity is claimed (the
“Indemnitor”) of any claim for which it seeks indemnification; provided,
however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from
any liability which it may have hereunder except to the extent such failure actually prejudices the
Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such
claim; provided, that the Indemnitor notifies the Indemnitee of its election to assume such
defense and settlement within 30 days after the Indemnitee gives the Indemnitor notice of the
claim. In such case, the Indemnitee will not settle or compromise such claim, and the Indemnitor
will not be liable for any such settlement made without the Indemnitor’s prior written consent. If
the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned
notice to the Indemnitee, the Indemnitee will (i) have the right to approve the Indemnitor’s
counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be
obligated to cooperate in furnishing evidence and testimony and in any other manner in which the
Indemnitor may reasonably request and (iii) be entitled to participate in (but not control) the
defense of any such action with its own counsel and at its own expense. The Indemnitor shall not,
without the prior written consent of an Indemnitee, consent to entry of judgment or effect any
settlement of any claim pending or threatened proceeding in respect of which such Indemnitee is or
could have been a party and indemnity could have been sought hereunder by such Indemnitee, unless
such judgment or settlement includes an unconditional release of such Indemnitee from all liability
arising out of such claim or proceeding and does not include any statement of admission of fault,
culpability or failure to act by or on behalf of such Indemnitee.
(i) The provisions of this Section 8 shall survive the expiration or earlier termination of
this Agreement.
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9. Duration and Termination.
(a) Unless this Agreement is earlier terminated in accordance with its terms, this Agreement
shall remain in effect until the date that is the third anniversary of the date hereof and shall be
automatically renewed for a one-year term on such third anniversary date and on each one-year
anniversary date thereafter if the Management Agreement is renewed on such date.
(b) This Agreement shall terminate (i) on any date on which the Management Agreement or the
Advisory Agreement is terminated or (ii) on any date that is mutually agreed by the parties hereto;
provided, however, that in any event and notwithstanding the contrary provisions of the Advisory
Agreement, if the Advisory Agreement were to remain in effect upon the termination of the
Management Agreement, then this Agreement shall continue in effect.
(c) The Sub-Advisor may terminate this Agreement effective as of any date on or following the
third anniversary of the date hereof by delivering 180 days’ prior written notice to the Advisor.
(d) If any one or more of the following events or circumstances (each, a “Cause”)
shall occur:
| (i) | the Sub-Advisor sells or otherwise disposes of all of its equity interest in the Manager, unless such sale or other disposition is to an Affiliate of the Sub-Advisor and is made in accordance with the Manager LLC Agreement; |
| (ii) | the Sub-Advisor materially breaches any provision of this Agreement and such breach has a material adverse effect on the Manager, the Advisor or the Company or on their respective businesses, assets or operations and such breach shall continue for a period of 30 days after written notice thereof specifying such breach and requesting that the same be remedied in such 30-day period (or 45 days after written notice of such breach if the Sub-Advisor takes material steps to cure such breach within 30 days of the written notice); |
| (iii) | a material representation or warranty made by the Sub-Advisor herein proves to have been not true and correct when made or deemed made hereunder which will have a material adverse effect on the Manager, the Advisor or the Company or their respective businesses, assets or operations; |
| (iv) | a Bankruptcy of the Sub-Advisor occurs; |
| (v) | the Sub-Advisor knowingly engages in any act of fraud, misappropriation of funds, or embezzlement against the Manager or the Company; |
| (vi) | the Sub-Advisor acts, or fails to act, in a manner constituting gross negligence in the performance of its duties under this Agreement; |
| (vii) | a final, non-appealable judgment is entered giving effect to a conviction of the Sub-Advisor or any of its officers or directors of a felony (including a plea of nolo contendere) under the laws of the United States or a state thereof or the laws of any other jurisdiction in which it conducts business and such conviction has a material adverse effect on the Sub-Advisor’s ability to perform its obligations and duties hereunder; or |
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| (viii) | a final, non-appealable judgment is entered giving effect to a conviction of the Sub-Advisor or any of its officers or directors of a material violation of any securities laws or regulations promulgated thereunder, or any regulations applicable to the Sub-Advisor’s business, and the consequences of such violation and conviction have or will have a material adverse effect on the Sub-Advisor’s ability to perform its obligations and duties hereunder, |
| then the Advisor shall have the right, subject to obtaining the consent to such action required by Section 3.3 of the Manager LLC Agreement, by 30 business days’ notice to the Sub-Advisor with a copy to the Manager, to terminate this Agreement (and the Sub-Advisor’s role as such), whereupon this Agreement shall terminate. If the Agreement is terminated pursuant to this Section 9(d), no Sub-Advisor Termination Fee will be paid to the Sub-Advisor. |
(e) From and after the effective date of any termination of this Agreement, the Sub-Advisor
shall be paid all compensation accruing to the date of termination (including (i) any Sub-Advisor
Termination Fee pursuant to Section 5 and (ii) in the event that the Sub-Advisor has served for
less than the whole of any period, any compensation prorated pursuant to Section 5) and will
continue to be reimbursed for all eligible expenses in accordance with Section 16 accrued prior to
the effective date of any termination of this Agreement.
10. Custody. The Sub-Advisor shall not be responsible for any custodial arrangements
involving any assets of the Company or for the payment of any custodial charges and fees, nor shall
the Sub-Advisor have possession or custody of any such assets.
11. Confidential Information. Each party hereby covenants with and undertakes to the
other party that, save as may be required by law or by any regulatory authority or agency or as may
otherwise be contemplated by this Agreement, it shall keep secret and confidential and shall not
disclose to any Person (other than the Company, the Manager, the Advisor, any Sub-Advisor and the
Consultant) any Confidential Information (as defined below), provided, however,
that (a) it shall not be required to keep secret and confidential any Confidential Information
which has properly entered the public domain otherwise than through the default of such party, and
(b) any party hereto may disclose Confidential Information (i) to any advisors, legal counsel,
accountants and other professional advisors retained in connection with such party’s business; (ii)
to appraisers, financing sources and other real estate-related service providers and to such
party’s (and its Affiliates’) partners, members, shareholders, officers, directors and employees in
the ordinary course of such party’s (or its Affiliate’s) business; (iii) to governmental officials
or agencies having jurisdiction over the relevant party; (iv) in connection with any governmental
or regulatory exchange filings of the relevant party or its Affiliates; (v) as required by law or
legal process to which the Company, the Manager, Advisor, the Sub-Advisor or any party to whom
disclosure is permitted hereunder is a party; (vi) with the written consent of the other party
hereto; or (vii) to the extent such information is otherwise publicly available through the actions
of a Person other than any party to this Agreement. In addition, any proprietary information
developed by the Advisor or the Sub-Advisor or their respective Affiliates in connection with this
Agreement may be used by such party or an Affiliate thereof in its ordinary course of business.
12. Publicity and Disclosure. The Sub-Advisor shall not make use of the Manager’s
name, the Advisor’s name, the name or names of the Company or the “AllianceBernstein” name or logo
in any advertising, signage, promotional material, press release, Web page, publication, media
interview, or other public statement, without the prior written consent of the Advisor, except
solely to disclose that the Sub-Advisor is acting as sub-advisor to the Advisor. None of the
parties hereto shall make statements to the media or issue press releases regarding any of its
services under this Agreement without the prior
10
written consent of the other parties to this Agreement, except solely to disclose that the
Sub-Advisor is acting as sub-advisor to the Advisor. The Sub-Advisor hereby agrees and authorizes
the Manager’s and the Advisor’s use of the Sub-Advisor’s or its Affiliate’s name or names in any
advertising, signage, promotional material, press release, Web page, publication, media interview,
or other public statements, solely to disclose the fact that the Sub-Advisor is acting as
sub-advisor to the Advisor. Except as provided in the foregoing sentence, neither the Advisor nor
the Manager shall make use of the Sub-Advisor’s or its Affiliate’s name or the “Greenfield” name or
logo in any advertising, signage, promotional material, press release, Web page, publication, media
interview, or other public statement without the prior written consent of the Sub-Advisor.
13. Notices. Unless otherwise specified herein, all notices delivered pursuant to
this Agreement shall be deemed duly given when received by a party at its address appearing on
Schedule B. The Advisor may rely upon any notice (written or oral) from any Person which the
Advisor reasonably believes to be an authorized representative of the Sub-Advisor.
14. No Partnership. Nothing in this Agreement shall be construed to make the Advisor,
on the one hand, and the Sub-Advisor on the other hand, partners or joint venturers or impose any
liability as such on either of them and nothing in this Agreement shall be construed to make the
Sub-Advisor an employee or an agent of the Advisor.
15. Assignment. No party hereto may assign any of its rights or obligations under
this Agreement to any other party without the consent of the other parties, provided that
any party may assign or delegate any of its rights or obligations under this Agreement without
consent to an Affiliate that is capable of satisfactorily performing the obligations of such party
that are specified in this Agreement. The Advisor shall have no obligation to provide any consent
that is required hereunder unless it shall have first obtained any consent required under the
Advisory Agreement.
16. Allocation of Charges and Expenses. The Sub-Advisor shall furnish at its own
expense all necessary services, facilities and personnel in connection with its responsibilities
hereunder, including all legal fees and disbursements; provided, however, that the
Sub-Advisor shall be reimbursed by the Manager for any out of pocket expenses and other expenses
incurred by the Sub-Advisor (or its Affiliates) in connection with the performance of the
Sub-Advisor’s duties hereunder, in each case to the extent (and only to the extent) that such type
of expense (i) is or would have been reimbursable to the Manager, the Advisor or the Sub-Advisor by
the Company if the Manager had been performing the relevant services under the Management
Agreement, but instead the Sub-Advisor (or its Affiliates) is performing such services hereunder,
(ii) is included in a budget of the Manager or the Company that has been approved by the Manager,
in accordance with Section 3.3 of the Manager LLC Agreement, or (iii) is otherwise approved
pursuant to the Manager LLC Agreement (including Section 5.4 thereof).
17. Invalid Provisions. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future law, such provision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or its severance from this Agreement.
18. Counterparts. This Agreement may be executed in two or more counterparts, each
one of which shall be deemed to be an original.
19. GOVERNING LAW. TO THE EXTENT FEDERAL LAW DOES NOT APPLY, THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
11
LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING ANY CONFLICT OF LAW PRINCIPLES.
20. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes any prior agreements or understandings
among the parties hereto pertaining thereto.
21. Other Advisors. Each of the Sub-Advisor and the Advisor shall have the right to
engage any legal, tax, financial or other advisors in connection with their duties under this
Agreement, including any Affiliates of the relevant party.
22. Conflicts. Nothing in this Agreement shall (i) prevent the Sub-Advisor or any of
its officers, stockholders, members, managers, partners, personnel, directors, agents, any Person
controlling or controlled by or under common control with the Sub-Advisor, or any Affiliates of any
of the foregoing, from engaging in other businesses or from rendering services of any kind to any
other Person, including, without limitation, rendering advisory services to others investing in any
type of business (including, without limitation, investments that meet the principal investment
objectives of the Company), whether or not the investment objectives or policies of any such other
Person or entity are similar to those of the Company or (ii) in any way bind or restrict the
Sub-Advisor or any of its officers, stockholders, members, managers, partners, personnel,
directors, agents, any Person controlling or controlled by or under common control with the
Sub-Advisor, or any Affiliates of any of the foregoing, from buying, selling or trading any
securities or investments for their own accounts or for the account of others for whom the
Sub-Advisor or any of its officers, stockholders, members, managers, partners, personnel,
directors, agents, any Person controlling or controlled by or under common control with the
Sub-Advisor, or any Affiliates of any of the foregoing, may be acting.
23. Amendments. This Agreement, and the terms hereof, may not be modified, amended or
supplemented other than by an agreement in writing signed by the parties hereto. The Manager
agrees it will not give its consent to any amendment or modification or supplement of the
Management Agreement, the Advisory Agreement, the other Sub-Advisory Agreement, the Consulting
Agreement or this Agreement except in accordance with Section 3.3 of the Manager LLC Agreement.
The Advisor agrees it will not give its consent to any amendment or modification or supplement of
the Advisory Agreement, the other Sub-Advisory Agreement, the Consulting Agreement or this
Agreement except in accordance with Section 3.3 of the Manager LLC Agreement.
24. Survival. All representations and warranties made hereunder, and in any document,
certificate or statement delivered pursuant hereto or in connection herewith, as well as the
provisions of Section 8 shall survive the execution and delivery of this Agreement.
25. Remedies. Any remedies provided for in this Agreement shall be cumulative in
nature and shall be in addition to any other remedies whatsoever (whether by operation of law,
equity, contract or otherwise) which any party may have.
26. TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION HEREUNDER.
27. Non-Exclusivity. Nothing in this Agreement shall be read or interpreted to
prevent the Advisor from engaging other sub-advisors (including Affiliates of the Advisor) to
perform functions that are identical to or different from the functions to be provided by the
Sub-Advisor hereunder or to prevent
12
the Company, the Manager or the Advisor from separately engaging and compensating the
Sub-Advisor or any of its Affiliates to perform services that are outside the scope of the services
to be performed by the Sub-Advisor hereunder, subject, however, to complying and in accordance with
the terms of the Manager LLC Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective representatives as of the date first above written.
| ALLIANCEBERNSTEIN L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| GREENFIELD ADVISORS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FOURSQUARE CAPITAL MANAGEMENT, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE A
| 1. | Sub-Advisory Fee. |
The Sub-Advisory Fee with respect to each quarter shall be paid to the Sub-Advisor by the
Manager on behalf of the Advisor (unless otherwise directed by the Sub-Advisor pursuant to Section
5(b) of this Agreement) on the Fee Payment Date for such quarter in an amount equal to (A) x (B),
where
“A” is equal to the amount of the Advisor Fee (as defined in the Advisory Agreement)
for such quarter prior to giving effect to the Sub-Advisor/Consultant Amounts (as defined in and
deducted in computing such Advisor Fee on Schedule A to the Advisory Agreement) for such quarter,
“B” is equal to the Percentage Interest (as defined in the Manager LLC Agreement) of
the Sub-Advisor or its Affiliate that is a Member (as defined in the Manager LLC Agreement) of the
Manager as modified from time to time pursuant to the Manager LLC Agreement.
The “Fee Payment Date” for any quarter shall mean the fifth business day after the
date of delivery to the Board of Directors of the Company of the computations made by the Manager
to calculate the Management Fee and the Incentive Fee (if any) that are paid by the Company to the
Manager after the end of such fiscal quarter (or such earlier date on which the Management Fee and
the Incentive Fee with respect to such quarter were actually paid in accordance with Section 9(e)
of the Management Agreement.)
| 2. | Sub-Advisor Termination Fee. |
The Sub-Advisor Termination Fee shall be equal to (A-B) x (C), where:
“A” is equal to the amount of Termination Fee (as defined in the Management Agreement)
received by the Manager under the Management Agreement,
“B” is equal to any unreimbursed expenses of and required to be paid by the Manager
itself (and not the Advisor nor any of their respective Affiliates) in connection with the
termination of the Management Agreement and approved in a budget of the Manager in accordance with
Section 3.3 of the Manager LLC Agreement and/or otherwise approved thereunder and any Purchase
Payments (as defined in the Manager LLC Agreement) to be made pursuant to the Manager LLC Agreement
out of the Termination Fee, and
“C” is equal to the Percentage Interest (as defined in the Manager LLC Agreement) of
the Sub-Advisor or its Affiliate that is a Member (as defined in the Manager LLC Agreement) of the
Manager as modified from time to time pursuant to the Manager LLC Agreement.
The Sub-Advisor Termination Fee shall be paid to the Sub-Advisor by the Manager on behalf of
the Advisor (unless otherwise directed by the Sub-Advisor pursuant to Section 5(b) of this
Agreement) no later than the business day following the day on which the Manager received the
Termination Fee.
A-1
SCHEDULE B
Notice Details.
For the Advisor:
AllianceBernstein, L.P
1345 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
1345 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
For the Sub-Advisor:
Greenfield Advisors, LLC
00 Xxxxx Xxxxx Xx.
Xxxxx Xxxxxxx
XX 00000
Attention: Xxxxx Xxxxxx
00 Xxxxx Xxxxx Xx.
Xxxxx Xxxxxxx
XX 00000
Attention: Xxxxx Xxxxxx
For the Manager:
Foursquare Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
