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ADVISORY
AGREEMENT
BETWEEN
BEDMINSTER CAPITAL CORP .
AND
THESEUS ASSET MANAGEMENT COMPANY, LLC
This ADVISORY AGREEMENT is
made and entered into as of this 30 th
day of June, 2008, between BEDMINSTER CAPITAL
CORP. , a Nevada corporation (the "Company") and THESEUS
ASSET MANAGEMENT COMPANY, LLC (the "Advisor"), a New Jersey
limited liability company.
WITNESSETH:
WHEREAS, the Company
desires to avail itself of the experience, sources of
information, advice and assistance of 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 (the "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 Directors, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants
herein contained, and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions .
As
used herein, the following terms shall have the meanings set
forth below:
(a)
"Affiliate" shall mean (i) any Person directly or indirectly
owning, controlling or holding with power to vote, five
percent (5%) or more of the outstanding voting securities of
such other Person; (ii) any person five percent (5%) or more
of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote, by
such other Person;
(hi)
any Person directly or indirectly controlling, controlled by,
or under common control with, such other Person; or (iv) any
officer, director, partner, copartner, or employee of such
other Person.
(b)
"Average Invested Assets" for any period shall mean the
average of the aggregate Book Value of the assets of the
Company. This figure will be computed by taking the average of
such values at the end of each month during such
period.
(c)
"Book Value" of an asset shall mean the value of such asset on
the books of the Company, before allowance for depreciation or
amortization or other similar non-cash reserves.
(d)
"Fiscal Year" shall mean any period for which an income tax
return is submitted by the Company to the Internal Revenue
Service and which is treated by the Internal Revenue Service
as a reporting period for the Company.
(e)
"Mortgage" shall mean a mortgage, a deed of trust or any other
instrument creating a security interest in a Real
Property.
(f)
"Mortgage Loan" shall mean a loan evidenced by a
Mortgage.
(g)
"Net Income" for any period shall mean total revenues
applicable to such period, less the expenses applicable to
such period other than additions to reserves for depreciation
or bad debts or other similar non-cash reserves.
(h)
"Person" shall mean and include individuals, corporations,
limited partnerships, limited liability companies, general
partnerships, joint stock companies or associations, joint
ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, or other entities and
governments and agencies and political subdivisions
thereof.
(i)
"Real Property" shall mean improved and unimproved land,
improvements, furniture and fixtures located on or used in
connection with land, and any right or interest in any of the
foregoing, including a leasehold interest, an interest in air,
subterranean or mineral rights, but shall not include Mortgage
Loans.
(j)
“Directors” shall mean the board of directors as
constituted by the Company from time to time in accordance
with its bylaws and certificate of incorporation.
2. Duties of the Advisor
.
The Advisor agrees to act
on a basis which is fair and reasonable to the Company and
its shareholders in selecting from among the particular
investment opportunities that come to it; provided, however,
that the Advisor shall not be required to present to the
Company any particular investment opportunity which comes to
it even if the opportunity is one which, if presented to the
Company, could be taken by the Company. Subject to the
supervision of the Directors, the Advisor shall:
(a)
use its best efforts to present and recommend to the Company a
continuing and suitable investment program consistent with the
investment policies and objectives of the
Company;
(b)
administer the Company's day-to-day investment operations and
perform or supervise the performance of such other
administrative functions in connection with the management of
the Company as may be agreed upon by the Advisor and the
Directors;
(c)
serve as the Company's investment primary adviser and
consultant in connection with policy decisions to be made by
the Directors and, as requested, furnish reports to the
Directors and provide research and economic and statistical
data in connection with the Company's investments and
investment
policies;
(d)
As may be agreed upon by the Advisor and the Directors,
investigate, select and conduct relations on behalf of the
Company with consultants, borrowers, lenders, mortgagors and
other mortgage and investment participants, accountants,
mortgage loan originators, or brokers, correspondents and
servicers, technical advisers, attorneys, underwriters,
brokers and dealers, corporate fiduciaries, escrow agents,
depositaries, custodians, agents tor collection, insurers,
insurance agents, banks, builders and developers, and persons
acting in any other capacity deemed by the Directors necessary
or desirable, and enter into appropriate contracts with,
employ, retain arid supervise services performed or to be
performed by, any such parties in connection with investments
which have been or may be acquired, sold or otherwise disposed
of by the Company;
(e)
consult with the Directors and present to them opportunities
to acquire investments consistent with the investment policies
and objectives of the Company and furnish the Directors with
advice and recommendations with respect to the making, the
acquiring (by purchase, investment, exchange or otherwise),
the holding and the disposition (through sale, exchange or
otherwise) of investments consistent with the policies and
objectives of the Company;
(f)
obtain for the Company such services as may be required for
property management, mortgage servicing, construction and
development loan disbursements and other activities relating
to the investment portfolio of the Company, and act as the
attorney-in-fact or agent of the Company in working with and
supervising whomever is selected to perform such
services.
3. Relationship of Parties :
The relationship between
the Parties created by this Agreement is that of independent
contractors, and not partners, joint venturers or
agents.
4. Records.
At all times, the Advisor
shall keep proper books of account and records relating to
services performed hereunder, sufficient to enable the
Company to verify that Company has received the services for
which the Company has been billed hereunder. Such
records shall be maintained throughout the term of the
Agreement, or for the later of a period of two (2) years
after termination of this
Agreement. The Company and any audit firm engaged
by the Company shall have the right, upon reasonable notice,
to examine such records at any time during ordinary business
hours.
5. Other Activities of Advisor .
(a) Nothing
herein contained shall prevent the Advisor, or any Affiliate
of the Advisor, from acting as adviser to any other person
or entity even though such entity may have
investment policies similar to the Company; provided, however,
that if, at any time, the Advisor serves as adviser to more
than one real estate entity (including the Company) with
similar investment policies, it will offer loans and
investments which are appropriate to more than one such entity
first to that entity which has had uninvested funds for the
longest period of time.
(b) Affiliates
of the Advisor may serve as Directors, officers, employees,
agents, nominees or signatories for the Company.
(
c) When executing documents or otherwise acting in
such capacities for the Company, such persons shall
use their respective titles in the Company.
6. Liability and Indemnification
.
(a) The
Advisor, its officers and its employees will not be liable to
the Company (whether on a tort, breach of contract or other
theory) for investment
advice or acts or omissions under or pursuant to this
Agreement or for the acts or omissions of the Company in the
management of the assets, and the Company shall indemnify and
save harmless the Advisor, its officers and employees from
and against any and all claims asserted against them arising
from any such investment advice, acts or omissions, including
all attorney’s fees and other expenses reasonably
incurred or to be incurred in the defense of any such claim
, to
the extent such liability, claims, damages or losses and
related expenses are not fully reimbursed by insurance,
unless such act or omission for which exculpation or
indemnification is sought constituted a breach of this
Agreement, bad faith, willful misfeasance, gross negligence
or reckless disregard by the Advisor of its duties in the
performance of services under this Agreement. The provisions
of this paragraph shall survive a termination or expiration
of this Agreement.
(b)
Advisor shall
indemnify and save harmless the Company, its officers and
employees from and against any and all claims asserted
against them arising from Advisor’s breach of this Agreement,
bad faith, willful misfeasance, gross negligence or reckless
disregard by the Advisor of its duties in the performance of
services under this Agreement. The provisions of this
paragraph shall survive a termination or expiration of this
Agreement.
7. Expenses
of the Advisor .
Without regard to the
amount of compensation received hereunder by the Advisor, the
Advisor shall bear the following
expenses:
(a) all
direct and indirect remuneration and all other employment
expenses of employees of the Advisor, including but not
limited to, salaries, wages, payroll taxes and the costs of
employee benefit plans, but not including fees paid to
Directors affiliated with the Advisor;
(b) rent,
telephone, utilities, office furniture,
equipment and machinery and other office expenses
of the Advisor, except as any of such expenses relate to an
office maintained by the Company separate from the office of
the Advisor;
(c) costs
including but not limited to travel, marketing, seminars,
courier, business promotions, entertainment, advertising,
office supplies, etc. where such costs are not directly
identifiable to the Company’s assets, liabilities,
operations, business and financial affairs; and
(d) miscellaneous
administrative expenses relating to performance by the Advisor
of its duties hereunder.
8. Compensation.
The Advisor shall be paid
for services rendered by it under this Agreement as
follows:
(a) Base
Compensation.
On or before the fifteenth
(15th) day of each calendar month, the Company shall pay to
the Advisor the higher of Thirty-Five thousand ($35,000.00)
Dollars or 0.1666% (2.00% on an annualized basis)
of Average Invested Assets of the Company during the
preceding month.
(b) Incentive
Compensation.
In order to further reward
the Advisor for performance hereunder, the Company shall pay
in cash to the Advisor on or before the ninetieth (90th) day
after the close of each Fiscal Year an incentive fee equal to
twenty percent (20%) of Net Income for such Fiscal Year in
excess of the initial ten percent (10%) amount of such Net
Income.
(c) Share
Compensation.
(i) Company
agrees to issue Three Million (3,000,000) Class A Common
Shares of Company (“Shares”) to
Advisor. The Company shall cause such Shares to be
issued as soon as reasonably practicable after execution of
this Agreement and after the effective date of a 1-for-10
reverse split to be carried out by the Company in the second
quarter of 2008.
(ii) By
Advisor’s execution of this Agreement, the Advisor
hereby confirms, that the Shares to be acquired by the
Advisor will be acquired for investment for the
Advisor’s own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part
thereof, and that the Advisor has no present intention of
selling, granting any participation in, or otherwise
distributing the same. By executing this
Agreement, the Advisor further represents that the Advisor
does not presently have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with
respect to any of the Shares. The Advisor has not been formed
for the specific purpose of acquiring the
Shares.&nb
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