EXHIBIT 10.150
INVESTMENT ADVISORY AGREEMENT FOR
DISCRETIONARY ACCOUNTS
This INVESTMENT ADVISORY AGREEMENT (the
“Agreement”) is made and entered into as of this 15
day of November, 2005 by and between Inland American Real
Estate Trust, Inc. (“Client”) and Inland Investment
Advisors, Inc., an Illinois corporation (“Adviser”),
an investment adviser registered under the Investment Advisers
Act of 1940, as amended (the “Advisers Act”), for
the purpose of setting forth the terms and conditions pursuant
to which Adviser will manage Client’s assets designed for
management hereunder.
NOW, THEREFORE, in consideration of the promises
and the mutual covenants contained herein, the parties hereto
agree as follows:
1.
APPOINTMENT AS INVESTMENT ADVISER.
Client hereby appoints and retains Adviser as
investment adviser and attorney-in-fact on the terms and
conditions set forth in this Agreement for those assets which
Client may from time to time place with Adviser, and any
appreciation, income or proceeds thereon (the
“Account”). Adviser accepts the appointment as
investment adviser and agrees to manage and direct the
investments of the Account, subject to any Investment Guidelines
(defined in Section 9 below) communicated to Adviser in advance
and in writing. Adviser assumes responsibility for the
investment management of, and all trading decisions for, the
Account as of the date assets are placed in the Account.
2.
AUTHORITY OF ADVISER.
Adviser has full discretionary authority with
respect to the investment and reinvestment of the assets of the
Account, subject to the Investment Guidelines. Adviser,
when it deems appropriate, without prior consultation with or
notification of Client, may, (a) purchase, sell, exchange,
convert and otherwise trade in securities, including but not
limited to money market instruments, mutual funds, stocks,
options and warrants, on margin or otherwise, (collectively,
“Investments”), for such prices, at such times and
on such terms as Adviser, in its sole discretion, deems
advisable; (b) place orders for the execution of transactions
with or through brokers, dealers or issuers Adviser selects in
its sole discretion, including broker-dealer with whom Adviser
is related; (c) render, furnish and provide advice, analyses and
other information concerning the retention, monitoring,
performance or termination of other investment advisers or asset
managers; (d) negotiate, on Client’s behalf, the terms and
conditions, and execute and deliver all agreements and ancillary
documents incidental thereto, necessary to open accounts in the
name, or for the benefit, of Client with such brokers, dealers,
advisers, managers, issuers or custodians as Adviser may select
with respect to the Account; and (e) act on Client’s
behalf in all matters necessary or incidental to servicing the
Account, including all transactions for the Account.
Client will furnish Adviser with all additional powers of
attorney and other documentation, if any, necessary to appoint
Adviser as agent and attorney-in-fact with respect to the
Account, but such powers shall not be construed to authorize
Adviser to take any action not authorized by this Agreement.
The foregoing authority shall remain in full
force and effect until; (a) revoked by Client pursuant to
written notice to Adviser, or (b) the termination of this
Agreement pursuant to the terms of Section 14 below.
Revocation shall not affect transactions entered into
prior to such revocation.
3.
CUSTODIANSHIP.
The assets of the Account will be held by the
clearinghouse, broker-dealer, bank, trust company or other
entity designed and appointed by Adviser, and acceptable to
Client, as custodian of the Account (“Custodian”).
All Investments held in the Account may be registered in
the name of Client or its nominee or held in street name.
Custodian is responsible for the physical custody of the
assets of the Account; for the collection of any interest,
dividends or other income attributable to the assets of the
Account; and for the exercise of rights and tenders on assets of
the Account. Adviser is not responsible for any loss
incurred by reason of any act or omission of Custodian;
provided, however, that Adviser will make reasonable efforts to
require that Custodian perform its obligations with respect to
the Account.
4.
BROKERAGE/RESEARCH.
A.
Selection of Broker-dealer.
Adviser may allocate the execution of
transactions for the Account to any broker-dealer at prices and
commission rates as Adviser, in its good faith judgment,
believes are in the best interest of the Account. Client
understands that other brokerage entities may be willing to
execute transactions at prices and commission rates that are
lower than or different from those charged by the entity
selected by Adviser. Client further understands and
acknowledges that Adviser has a relationship with Inland
Securities Corporation, a broker-dealer registered with the
Securities and Exchange Commission, and that certain
transactions on behalf of the Account may be executed through
Inland Securities Corporation, and as a result, Adviser as a
part of the Inland Group of companies, may benefit from the
brokerage commissions from these transactions. Although
Adviser intends to treat Client fairly and act in the best
interests of Client and the Account in accordance with
Adviser’s fiduciary duty, Client understands that Adviser
has an incentive to execute transactions through Inland
Securities Corporation to generate brokerage commissions.
B.
Research Services.
In determining what is in the Account’s
best interest, Adviser will consider the available prices and
rates of brokerage commissions, and other relevant factors
including, without limitation, execution capabilities, the value
of ongoing relationships Adviser may have with various
broker-dealer and research and other services, as defined in
Section 28(e)(3) of the Securities Exchange Act of 1934.
In addition, Adviser may receive equipment, subscriptions
and reimbursement for professional memberships from
broker-dealer, and may purchase research and other services
directly from vendors, obtaining reimbursement from
broker-dealer. Adviser need not demonstrate that the
research and other services are of a direct benefit to the
Account. The commissions paid to the broker-dealer may
exceed the amount of commissions another broker-dealer would
charge for the same transaction. Such research and other
services, moreover, may be available to Adviser on a cash basis.
Adviser will be required to determine, in good faith, that
the amount of commissions paid is reasonable in relation to the
value of the brokerage, research and other services provided by
the broker-dealer, viewed in terms of either the particular
transaction or Adviser’s overall responsibilities to all
of its clients. The research and other services provided
may relate to a specific transaction placed with the
broker-dealer, but for the most part will consist of a wide
variety of information useful to the Account, Adviser and
Adviser’s other clients. Adviser’s ability to
obtain research and other services is an integral factor in
establishing the fees charged by Adviser under this
Agreement.
C.
Execution of Transactions by Broker-Dealer.
In effecting transactions at the direction of
Adviser, broker-dealer selected by Adviser may effect similar
transactions in the same Investment Account and for the accounts
of other clients of Adviser. Broker-dealer may bunch
transaction orders and will allocate the Investments so
purchased or sold in a bunched order among the participating
accounts (including the Account) as Adviser determines to be
reasonable. Adviser may be charged a lesser per unit
commission on bunched orders than would otherwise be charged for
a non-bunched order, with the savings allocated to Client and
Adviser’s other clients whose orders are bunched. In
the case of bunched orders, the brokerage commission paid by
Client will be equal to a pro rata portion of the entire
commission charged, determined by multiplying the entire
commission by a fraction, the numerator of which is the number
of shares allocated to the Account and the denominator of which
is the total number of shares purchased or sold in the bunched
transaction.
5.
SERVICES TO OTHERS.
Client understands that Adviser performs
investment advisory services for various clients. Adviser
will allocate investment opportunities over a period of time on
a fair and equitable basis relative to all clients. These
allocations will be made on a basis determined by Adviser to be
reasonable, including a determination that some clients may not
purchase or sell the same Investments at the same time as
others. Client acknowledges that Adviser and its
principals, employees and affiliates may purchase or sell
Investments for their own accounts and that Adviser shall not
have any obligation to purchase or sell, or t
