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Exhibit
10.64
ADVISORY AGREEMENT
between
KBS REAL ESTATE INVESTMENT
TRUST, INC.
and
KBS CAPITAL ADVISORS
LLC
November 8,
2007
TABLE OF CONTENTS
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Page |
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ARTICLE 1 - DEFINITIONS
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1 |
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ARTICLE 2 - APPOINTMENT
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8 |
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ARTICLE 3 - DUTIES OF THE
ADVISOR
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9 |
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3.01 Organizational and Offering
Services
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9 |
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3.02 Acquisition Services
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9 |
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3.03 Asset Management
Services
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10 |
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3.04 Stockholder Services
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12 |
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3.05 Other Services
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13 |
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ARTICLE 4 - AUTHORITY OF
ADVISOR
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13 |
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4.01 General
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13 |
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4.02 Powers of the Advisor
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13 |
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4.03 Approval by the Board of
Directors
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13 |
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4.04 Modification or Revocation of
Authority of Advisor
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13 |
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ARTICLE 5 - BANK ACCOUNTS
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14 |
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ARTICLE 6 - RECORDS AND FINANCIAL
STATEMENTS
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14 |
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ARTICLE 7 - LIMITATION ON
ACTIVITIES
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14 |
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ARTICLE 8 - FEES
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15 |
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8.01 Acquisition Fees
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15 |
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8.02 Asset Management Fees
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15 |
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8.03 Disposition Fees
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17 |
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8.04 Subordinated Share of Cash
Flows
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17 |
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8.05 Subordinated Incentive
Fee
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18 |
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8.06 Changes to Fee Structure
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18 |
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ARTICLE 9 - EXPENSES
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18 |
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9.01 General
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18 |
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9.02 Timing of and Limitations on
Reimbursements
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20 |
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ARTICLE 10 – VOTING
AGREEMENT
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20 |
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ARTICLE 11 - RELATIONSHIP OF ADVISOR AND
COMPANY; OTHER ACTIVITIES OF THE ADVISOR
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21 |
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11.01 Relationship
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21 |
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11.02 Time Commitment
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21 |
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11.03 Investment Opportunities and
Allocation
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21 |
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ARTICLE 12 - THE KBS NAME
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22 |
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ARTICLE 13 - TERM AND TERMINATION OF THE
AGREEMENT
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22 |
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13.01 Term
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22 |
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13.02 Termination by Either
Party
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22 |
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13.03 Payments on Termination and
Survival of Certain Rights and Obligations
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22 |
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ARTICLE 14 - ASSIGNMENT
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23 |
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ARTICLE 15 - INDEMNIFICATION AND
LIMITATION OF LIABILITY
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23 |
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ARTICLE 16 - ADVANCE
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24 |
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ARTICLE 17 - MISCELLANEOUS
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24 |
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17.01 Notices
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24 |
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17.02 Modification
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25 |
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17.03 Severability
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25 |
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17.04 Construction
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25 |
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17.05 Entire Agreement
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25 |
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17.06 Waiver
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25 |
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17.07 Gender
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25 |
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17.08 Titles Not to Affect
Interpretation
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25 |
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17.09 Counterparts
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ii
ADVISORY AGREEMENT
This Advisory Agreement,
dated as of November 8, 2007 (the “Agreement”), is
between KBS Real Estate Investment Trust, Inc., a Maryland
corporation (the “Company”), and KBS Capital Advisors
LLC, a Delaware limited liability company (the
“Advisor”).
WITNESSETH
WHEREAS, the Company desires
to avail itself of the knowledge, experience, sources of
information, advice, assistance and certain facilities available to
the Advisor and to have the Advisor undertake the duties and
responsibilities hereinafter set forth, on behalf of, and subject
to the supervision of, the Board of Directors of the Company, all
as provided herein; and
WHEREAS, the Advisor is
willing to undertake to render such services, subject to the
supervision of the Board of Directors of the Company, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements contained herein, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
The following defined terms
used in this Agreement shall have the meanings specified
below:
“Acquisition
Expenses” means any and all expenses, excluding the fee
payable to the Advisor pursuant to Section 8.01, incurred by
the Company, the Advisor or any Affiliate of either in connection
with the selection, acquisition or development of any property or
other potential investment, whether or not acquired, including,
without limitation, legal fees and expenses, travel and
communications expenses, costs of appraisals, nonrefundable option
payments on properties or other investments not acquired,
accounting fees and expenses, and title insurance
premiums.
“Acquisition
Fees” means the fee payable to the Advisor pursuant to
Section 8.01 plus all other fees and commissions paid by any
Person to any Person in connection with making or investing in any
Property, Loan or other Permitted Investment or the purchase,
development or construction of Property by the Company. Included in
the computation of such fees or commissions shall be any real
estate commission, selection fee, Development Fee, Construction
Fee, nonrecurring management fee, loan fees or points or any fee of
a similar nature, however designated. Excluded shall be Development
Fees and Construction Fees paid to Persons not Affiliated with the
Advisor in connection with the actual development and construction
of a Property.
1
“Advance” shall
have the meaning set forth in Article 16.
“Advisor” means
(i) KBS Capital Advisors LLC, a Delaware limited liability
company, or (ii) any successor advisor to the
Company.
“Affiliate or
Affiliated.” An Affiliate of another Person includes any of
the following: (i) any Person directly or indirectly
controlling, controlled by, or under common control with such other
Person; (ii) any Person directly or indirectly owning,
controlling, or holding with the power to vote 10% or more of the
outstanding voting securities of such other Person; (iii) any
legal entity for which such Person acts as an executive officer,
director, trustee, or general partner; (iv) any Person 10% or
more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held, with power to vote, by such
other Person; and (v) any executive officer, director,
trustee, or general partner of such other Person. An entity shall
not be deemed to control or be under common control with an
Advisor-sponsored program unless (i) the entity owns 10% or
more of the voting equity interests of such program or (ii) a
majority of the board (or equivalent governing body) of such
program is comprised of Affiliates of the entity.
“Appraised Value”
means the value according to an appraisal made by an Independent
Appraiser.
“Articles of
Incorporation” means the Articles of Incorporation of the
Company under Title 2 of the Corporations and Associations Article
of the Annotated Code of Maryland, as amended from time to
time.
“Asset Management
Fee” shall have the meaning set forth in
Section 8.02.
“Average Invested
Assets” means, for a specified period, the average of the
aggregate book value of the assets of the Company invested,
directly or indirectly, in Properties, Loans and other Permitted
Investments secured by real estate before reserves for depreciation
or bad debts or other similar non-cash reserves, computed by taking
the average of such values at the end of each month during such
period.
“Board of Directors or
Board” means the persons holding such office, as of any
particular time, under the Articles of Incorporation of the
Company, whether they be the Directors named therein or additional
or successor Directors.
“Bylaws” means
the bylaws of the Company, as amended from time to time.
“Cash from
Financings” means the net cash proceeds realized by the
Company from the financing of Properties, Loans or other Permitted
Investments or from the refinancing of any Company indebtedness
(after deduction of all expenses incurred in connection
therewith).
“Cash from Sales”
means the net cash proceeds realized by the Company from the sale,
exchange or other disposition of any of its assets after deduction
of all expenses incurred in connection therewith. In the case of a
transaction described in clause (i) (C) of
2
the definition of “Sale,”
Cash From Sales means the proceeds of any such transaction actually
distributed to the Company from the Joint Venture or partnership.
Cash from Sales shall not include Cash from Financings.
“Cash from Sales and
Financings” means the total sum of Cash from Sales and Cash
from Financings.
“Code” means the
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” means
KBS Real Estate Investment Trust, Inc., a corporation organized
under the laws of the State of Maryland.
“Competitive Real
Estate Commission” means a real estate or brokerage
commission for the purchase or sale of property that is reasonable,
customary, and competitive in light of the size, type, and location
of the property.
“Conflicts
Committee” shall have the meaning set forth in the
Company’s Articles of Incorporation.
“Construction
Fee” means 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
rehabilitation on a Property.
“Contract Sales
Price” means the total consideration received by the Company
for the sale of a Property, Loan or other Permitted
Investment.
“Cost of JV
Investment” shall equal the product of (i) the amount
actually paid or allocated to the purchase, development,
construction or improvement of Properties by the New Leaf –
KBS JV, LLC, inclusive of expenses related thereto, and the amount
of any outstanding debt associated with such Properties and the
venture and (ii) the percentage that represents the
Company’s economic interest in New Leaf – KBS JV,
LLC.
“Cost of Real Estate
Investments” means the sum of (i) with respect to
Properties wholly owned, directly or indirectly, by the Company,
the amount actually paid or allocated to the purchase, development,
construction or improvement of Properties, inclusive of expenses
related thereto, plus the amount of any outstanding debt
attributable to such Properties and (ii) in the case of
Properties owned by any Joint Venture or partnership in which the
Company is a co-venturer or partner, the portion of the amount
actually paid or allocated to the purchase, development,
construction or improvement of Properties, inclusive of expenses
related thereto, plus the amount of any outstanding debt associated
with such Properties that is attributable to the Company’s
investment in the Joint Venture or partnership.
3
“Dealer Manager”
means (i) KBS Capital Markets Group LLC, a Delaware limited
liability company, or (ii) any successor dealer manager to the
Company.
“Development Fee”
means a fee for the packaging of a Property, including negotiating
and approving plans, and undertaking to assist in obtaining zoning
and necessary variances and necessary financing for the Property,
either initially or at a later date.
“Director” means
a member of the Board of Directors of the Company.
“Disposition Fee”
shall have the meaning set forth in Section 8.03.
“Distributions”
means any distributions of money or other property by the Company
to owners of Shares, including distributions that may constitute a
return of capital for federal income tax purposes.
“GAAP” means
accounting principals generally accepted in the United
States.
“Gross Proceeds”
means the aggregate purchase price of all Shares sold for the
account of the Company through an Offering, without deduction for
Organization and Offering Expenses.
“Independent
Appraiser” means a person or entity with no material current
or prior business or personal relationship with the Advisor or the
Directors, who is engaged to a substantial extent in the business
of rendering opinions regarding the value of assets of the type
held by the Company, and who is a qualified appraiser of real
estate as determined by the Board. Membership in a nationally
recognized appraisal society such as the American Institute of Real
Estate Appraisers (“M.A.I.”) or the Society of Real
Estate Appraisers (“S.R.E.A.”) shall be conclusive
evidence of such qualification.
“Invested
Capital” means the amount calculated by multiplying the total
number of Shares purchased by Stockholders by the issue price,
reduced by any amounts paid by the Company to repurchase Shares
pursuant to the Company’s plan for redemption of
Shares.
“Joint Venture”
means any joint venture, limited liability company or other
Affiliate of the Company that owns, in whole or in part, on behalf
of the Company any Properties, Loans or other Permitted
Investments.
“Listed” or
“Listing” shall have the meaning set forth in the
Company’s Articles of Incorporation.
“Loans” means
mortgage loans and other types of debt financing purchased by the
Company, including, without limitation, mezzanine loans, B-notes,
bridge loans, convertible mortgages, wraparound mortgage loans,
construction mortgage loans, loans on leasehold interests and
participations in such loans.
4
“NASAA
Guidelines” means the NASAA Statement of Policy Regarding
Real Estate Investment Trusts as in effect on the date
hereof.
“New Leaf-KBS
Management Fee” has the meaning set forth in
Section 8.02(ii).
“Net Income”
means, for any period, the total revenues applicable to such
period, less the total expenses applicable to such period excluding
additions to reserves for depreciation, bad debts or other similar
non-cash reserves; provided, however, Net Income for purposes of
calculating total allowable Operating Expenses (as defined herein)
shall exclude the gain from the sale of the Company’s
assets.
“Offering” means
any offering of Shares that is registered with the SEC, excluding
Shares offered under any employee benefit plan.
“Operating Cash
Flow” means Operating Revenue Cash Flows minus the sum of
(i) Operating Expenses, (ii) all principal and interest
payments on indebtedness and other sums paid to lenders,
(iii) 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, (iv) taxes, (v) incentive fees paid in compliance
with Section IV.F. of the NASAA Guidelines and
(vi) Acquisition Fees, Acquisition Expenses, real estate
commissions on resale of property, and other expenses connected
with the acquisition, disposition, and ownership of real estate
interests, mortgage loans or other property (such as the costs of
foreclosure, insurance premiums, legal services, maintenance,
repair and improvement of property).
“Operating
Expenses” means all costs and expenses incurred by the
Company, as determined under GAAP, which in any way are related to
the operation of the Company or to Company business, including fees
paid to the Advisor, but excluding (i) the expenses of raising
capital such as Organization and Offering Expenses, legal, audit,
accounting, underwriting, brokerage, listing, registration, and
other fees, printing and other such expenses and tax incurred in
connection with the issuance, distribution, transfer, registration
and Listing of the Shares, (ii) interest payments,
(iii) taxes, (iv) non-cash expenditures such as
depreciation, amortization and bad loan reserves,
(v) incentive fees paid in compliance with Section IV.F. of
the NASAA Guidelines and (vi) Acquisition Fees, Acquisition
Expenses, real estate commissions on resale of property, and other
expenses connected with the acquisition, disposition, and ownership
of real estate interests, mortgage loans or other property (such as
the costs of foreclosure, insurance premiums, legal services,
maintenance, repair and improvement of property).
“Operating Revenue Cash
Flows” means the Company’s cash flow from ownership and
operation of Properties, Loans, interests in Properties owned by
any Joint Venture or partnership in which the Company is a
co-venturer or partner, Permitted Investments, and short-term
investments.
“Organization and
Offering Expenses” means all expenses incurred by or on
behalf of the Company in connection with and in preparing the
Company for registration
5
of and subsequently offering and
distributing its Shares to the public, whether incurred before or
after the date of this Agreement, which may include but are not
limited to, total underwriting and brokerage discounts and
commissions (including fees of the underwriters’ attorneys);
any expense allowance granted by the Company to the underwriter or
any reimbursement of expenses of the underwriter by the Company;
expenses for printing, engraving and mailing; salaries of employees
while engaged in sales activity; charges of transfer agents,
registrars, trustees, escrow holders, depositaries and experts; and
expenses of qualification of the sale of the securities under
Federal and State laws, including taxes and fees,
accountants’ and attorneys’ fees.
“Partnership”
means KBS Limited Partnership, a Delaware limited partnership
formed to own and operate Properties, Loans and other Permitted
Investments on behalf of the Company.
“Performance Fee”
has the meaning set forth in Section 8.02(ii).
“Permitted
Investments” means all investments (other than Properties,
Loans and interests in Properties owned by any Joint Venture or
partnership in which the Company is a co-venturer or partner) that
the Company may acquire pursuant to its Articles of Incorporation,
Bylaws and the investment objectives and policies adopted by the
Board of Directors of the Company from time to time, other than
short-term investments acquired for purposes of cash
management.
“Person” means an
individual, corporation, partnership, estate, trust (including a
trust qualified under Section 401(a) or 501(c) (17) of
the Code), a portion of a trust permanently set aside for or to be
used exclusively for the purposes described in Section 642(c)
of the Code, association, private foundation within the meaning of
Section 509(a) of the Code, joint stock company or other
entity, or any government or any agency or political subdivision
thereof, and also includes a group as that term is used for
purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended.
“Property or
Properties” means any real property or properties transferred
or conveyed to the Company or the Partnership, either directly or
indirectly, and/or any real property or properties transferred or
conveyed to a Joint Venture or partnership in which the Company is
a co-venturer or partner.
“Property
Manager” means an entity that has been retained to perform
and carry out at one or more of the Properties property-management
services, excluding persons, entities or independent contractors
retained or hired to perform facility management or other services
or tasks at a particular Property, the costs for which are passed
through to and ultimately paid by the tenant at such
Property.
“Registration
Statement” means the registration statement filed by the
Company with the SEC on Form S-11 (Reg. No. 333-126087), as
amended from time to time, in connection with the initial public
offering of the Company’s Shares.
“REIT” means a
“real estate investment trust” under Sections 856
through 860 of the Code.
6
“Sale or Sales”
means (i) any transaction or series of transactions whereby:
(A) the Company or the Partnership sells, grants, transfers,
conveys, or relinquishes its ownership of any Property, Loan or
other Permitted Investment or portion thereof, including the
transfer of any Property that is the subject of a ground lease, and
including any event with respect to any Property, Loan or other
Permitted Investment that gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Company or
the Partnership 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 or partnership
which it is a co-venturer or partner; or (C) any Joint Venture
or partnership (in which the Company or the Partnership as a
co-venturer or partner) sells, grants, transfers, conveys, or
relinquishes its ownership of any Property, Loan or other Permitted
Investment or portion thereof, including any event with respect to
any Property, Loan or other Permitted Investment that gives rise to
insurance claims or condemnation awards, but (ii) not
including any transaction or series of transactions specified in
clause (i) (A), (i) (B), or (i) (C) above in
which the proceeds of such transaction or series of transactions
are reinvested in one or more Properties, Loans or other Permitted
Investments within 180 days thereafter.
“SEC” means the
United States Securities and Exchange Commission.
“Shares” means
the shares of common stock of the Company, par value $.01 per
share.
“Stockholders”
means the registered holders of the Shares.
“Stockholders’ 8%
Return” means, as of any date, an aggregate amount equal to
an 8% cumulative, non-compounded, annual return on Invested Capital
(calculated like simple interest on a daily basis based on a three
hundred sixty-five day year). For purposes of calculating the
Stockholders’ 8% Return, Invested Capital shall be determined
for each day during the period for which the Stockholders’ 8%
Return is being calculated and shall be calculated net of
(1) Distributions of Operating Cash Flow to the extent such
Distributions of Operating Cash Flow provide a cumulative,
non-compounded, annual return in excess of 8%, as such amounts are
computed on a daily basis based on a three hundred sixty-five day
year and (2) Distributions of Cash from Sales and Financings,
except to the extent such Distributions would be required to
supplement Distributions of Operating Cash Flow in order to achieve
a cumulative, non-compounded, annual return of 8%, as such amounts
are computed on a daily basis based on a three hundred sixty-five
day year.
“Subordinated Incentive
Fee” means the fee payable to the Advisor under certain
circumstances if the Shares are Listed, as calculated in
Section 8.05.
“Subordinated
Performance Fee Due Upon Termination” means a fee payable in
the form of an interest bearing promissory note (the
“Performance Fee Note”) in a principal amount equal to
(1) 15% of the amount, if any, by which (a) the Appraised
Value of the Company’s Properties at the Termination Date,
less amounts of all indebtedness secured by the Company’s
Properties, plus the fair market value of all other
7
Loans and Permitted Investments of the
Company at the Termination Date, less amounts of indebtedness
related to such Loans and Permitted Investments, plus total
Distributions (excluding any stock dividend) through the
Termination Date exceeds (b) the sum of Invested Capital plus
total Distributions required to be made to the stockholders in
order to pay the Stockholders’ 8% Return from inception
through the Termination Date less (2) any prior payment to the
Advisor of a Subordinated Share of Cash Flows. Interest on the
Performance Fee Note will accrue beginning on the Termination Date
at a rate deemed fair and reasonable by the Conflicts Committee.
The Company shall repay the Performance Fee Note at such time as
the Company completes the first Sale after the Termination Date
using Cash from Sales. If the Cash from Sales from the first Sale
after the Termination Date is insufficient to pay the Performance
Fee Note in full, including accrued interest, then the Performance
Fee Note shall be paid in part from the Cash from Sales from the
first Sale, and in part from the Cash From Sales from each
successive Sale until the Performance Fee Note is repaid 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
fee, 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 fee, 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 of Directors based
upon the Appraised Value of Company’s Properties on the date
of election plus the fair market value of all other Loans and
Permitted Investments of the Company on the date of
election.
“Subordinated Share of
Cash Flows” has the meaning set forth in
Section 8.04.
“Termination
Date” means the date of termination of the Agreement
determined in accordance with Article 13 hereof.
“2%/25%
Guidelines” means the requirement pursuant to the NASAA
Guidelines that, in any period of four consecutive fiscal quarters,
total Operating Expenses not exceed the greater of 2% of the
Company’s Average Invested Assets during such 12-month period
or 25% of the Company’s Net Income over the same 12-month
period.
“7% Return” has
the meaning set forth in Section 8.02(ii).
ARTICLE 2
APPOINTMENT
The Company hereby appoints
the Advisor to serve as its advisor and asset manager on the terms
and conditions set forth in this Agreement, and the Advisor hereby
accepts such appointment.
8
ARTICLE 3
DUTIES OF THE
ADVISOR
The Advisor is responsible
for managing, operating, directing and supervising the operations
and administration of the Company and its assets. The Advisor
undertakes to use its best efforts to present to the Company
potential investment opportunities and to provide the Company with
a continuing and suitable investment program consistent with the
investment objectives and policies of the Company as determined and
adopted from time to time by the Board of Directors. Subject to the
limitations set forth in this Agreement, including Article 4
hereof, and the continuing and exclusive authority of the Board of
Directors over the management of the Company, the Advisor shall,
either directly or by engaging an Affiliate or third party, perform
the following duties:
3.01 Organizational and
Offering Services. The Advisor shall perform all services related
to the organization of the Company or any Offering or private sale
of the Company’s securities other than services that
(i) are to be performed by the Dealer Manager, (ii) the
Company elects to perform directly or (iii) would require the
Advisor to register as a broker-dealer with the SEC or any
state.
3.02 Acquisition
Services.
(i) Serve as the
Company’s investment and financial advisor and provide
relevant market research and economic and statistical data in
connection with the Company’s assets and investment
objectives and policies;
(ii) Subject to
Section 4 hereof and the investment objectives and policies of
the Company: (a) locate, analyze and select potential
investments; (b) structure and negotiate the terms and
conditions of transactions pursuant to which investments in
Properties, Loans and other Permitted Investments will be made;
(c) acquire Properties, Loans and other Permitted Investments
on behalf of the Company; (d) arrange for financing and
refinancing and make other changes in the asset or capital
structure of investments in Properties, Loans and other Permitted
Investments; and (e) enter into leases, service contracts and
other agreements for Properties;
(iii) Perform due diligence
on prospective investments and create due diligence reports
summarizing the results of such work;
(iv) Prepare reports
regarding prospective investments that include recommendations and
supporting documentation necessary for the Directors to evaluate
the proposed investments;
(v) Obtain reports (which may
be prepared by the Advisor or its Affiliates), where appropriate,
concerning the value of contemplated investments of the
Company;
9
(vi) Deliver to or maintain
on behalf of the Company copies of all appraisals obtained in
connection with the Company’s investments; and
(vii) Negotiate and execute
approved investments and other transactions.
3.03 Asset Management
Services.
(i) Real Estate
Services:
(a) Investigate, select and,
on behalf of the Company, engage and conduct business with
(including enter contracts with) such Persons as the Advisor deems
necessary to the proper performance of its obligations as set forth
in this Agreement, including but not li
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