Exhibit 10.1
SECOND AMENDED AND RESTATED ADVISORY
AGREEMENT
THIS SECOND AMENDED AND RESTATED
ADVISORY AGREEMENT (this “Agreement”), dated as of
January 30, 2009, is made and entered into among CB RICHARD
ELLIS REALTY TRUST, a Maryland real estate investment trust (the
“Company”), CBRE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the “Operating
Partnership”) and CBRE ADVISORS LLC, a Delaware limited
liability company (the “Advisor”).
W I T N E S S E T H
WHEREAS, the Company has elected to
be taxed as a REIT (as defined below), and to invest its funds in
investments permitted by the terms of the Company’s
Declaration of Trust (as defined herein) and Sections 856
through 860 of the Code (as defined below);
WHEREAS, the Company is the general
partner of the Operating Partnership and intends to conduct all of
its business and make all investments through the Operating
Partnership;
WHEREAS, the Company and the
Operating Partnership desire to avail themselves of the 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 Trustees of the
Company all as provided herein;
WHEREAS, the Advisor is willing to
undertake to render such services, subject to the supervision of
the Board of Trustees, on the terms and conditions hereinafter set
forth; and
WHEREAS, the parties hereto are
party to an Amended and Restated Advisory Agreement (the
“Amended Advisory Agreement”), dated as of
October 24, 2006, and hereby wish to amend and restate the
Amended Advisory Agreement.
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Definitions . As used in
this Agreement, the following terms have the definitions
hereinafter indicated:
Acquisition Expenses
. As such term is defined in the
Declaration of Trust.
Acquisition Fee
. The Acquisition Fee payable to the
Advisor or its Affiliates as set forth in
Section 8(b).
Advisor . CBRE Advisors LLC, a Delaware limited
liability company, any successor advisor to the Company, or any
Person to which CBRE Advisors LLC or any successor advisor
subcontracts substantially all of its functions. Notwithstanding
the foregoing, a Person hired or retained by CBRE Advisors LLC to
perform services for the Company or the Operating Partnership that
is not hired or retained to perform substantially all of the
functions of CBRE Advisors LLC with respect to the Company or the
Operating Partnership as a whole shall not be deemed to be an
Advisor.
Affiliate or Affiliated . As such term is defined
in the Declaration of Trust.
Appraised Value
. As such term is defined in the
Declaration of Trust.
“ 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’s 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 sixty (60) days after the filing of
an involuntary petition under Title 11 of the Unites 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, (d) the entry against it of
a final and non-appealable order for relief under any bankruptcy,
insolvency or similar law now or hereinafter in effect,
(e) the attachment or other judicial seizure of all or
substantially all of its assets, which remains pending,
(f) its acknowledgement in writing of its inability to pay its
debts as they come due, (g) its entry into an offer of
settlement, extension or composition to its creditors generally,
(h) its taking any action for the purpose of effecting any of
the foregoing, or (i) a determination by the Board, in its
reasonable discretion, that such Person is bankrupt, insolvent or
otherwise unable to pay its debts as they come due.
Board of Trustees or
Board . The persons
holding such office, as of any particular time, under the
Declaration of Trust of the Company, whether they be the Trustees
named therein or additional or successor Trustees.
Book Value
. As such term is defined in the
Declaration of Trust.
Bylaws . The Amended and Restated Bylaws of the
Company, as amended from time to time.
Cause . With respect to the termination of this
Agreement, (i) fraud, criminal conduct, willful misconduct or
willful or negligent breach of fiduciary duty by the Advisor,
(ii) a material breach of this Agreement by the Advisor which
remains uncured after 30 days’ written notice, (iii) the
Bankruptcy or insolvency of the Advisor, CB Richard Ellis Investors
L.L.C. and/or CB Richard Ellis Group, Inc. (collectively the
“Sponsor Entities”), or (iv) there is a
dissolution of any of the Sponsor Entities.
Class B Interest
. As such term is defined in
Section 8(e).
Code . 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.
Common Shares
. Any of the Company’s common
shares of beneficial interest, par value $0.01 per
share.
Company . As such term is defined in the preamble of
this Agreement.
Competitive Real Estate
Commission . As such term
is defined in the Declaration of Trust.
Contract Purchase
Price . As such term is
defined in the Declaration of Trust.
Dealer Manager
. As such term is defined in the
Declaration of Trust.
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Declaration of Trust
. The Second Amended and Restated
Declaration of Trust of the Company under Title 8 of the
Corporations and Associations Article of the Annotated Code of
Maryland, as amended from time to time.
Effective Date
. As such term is defined in the
Declaration of Trust.
GAAP . Generally accepted accounting principles as in
effect in the United States of America from time to
time.
Gross Proceeds
. As such term is defined in the
Declaration of Trust.
Independent Appraiser
. As such term is defined in the
Declaration of Trust.
Independent Trustee
. As such term is defined in the
Declaration of Trust.
Investment Management
Fee . The Investment
Management Fee payable to the Advisor as defined in
Section 8(a).
Joint Ventures
. As such term is defined in the
Declaration of Trust.
Mortgage . As such term is defined in the Declaration of
Trust.
Net Income
. As such term is defined in the
Declaration of Trust.
Net Operating Income
. Equal to (i) revenues from
Properties, less deferred rents receivable, calculated, in each
case, in accordance with GAAP, plus (ii) payments received
pursuant to master lease agreements with sellers of Properties,
less (iii) the costs of maintaining the Properties, including,
without limitation, taxes, insurance, repairs and maintenance, but
excluding depreciation, amortization, principal and interest
payments, and capital expenditures, calculated, in each case, in
accordance with GAAP.
Net Sales Proceeds
. As such term is defined in the
Declaration of Trust.
Offering . As such term is defined in the Declaration of
Trust.
Operating Expenses
. All costs and expenses of every
character paid or incurred by the Company as determined under
generally accepted accounting principles, that are in any way
related to the operation of the Company or to Company business,
including advisory fees, 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 debt reserves,
(v) Acquisition Expenses, (vi) real estate commissions on
the Sale of Property, and (vii) other fees and expenses
connected with the acquisition and disposition of real estate
interests, mortgage loans or other property.
Operating Partnership
. As such term is defined in the
preamble of this Agreement.
Operating Partnership
Agreement . As such term
is defined in the Declaration of Trust.
Organizational and Offering
Expenses . As such term
is defined in the Declaration of Trust.
Person . As such term is defined in the Declaration of
Trust.
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Property or Properties
. As such term is defined in the
Declaration of Trust.
Property Management, Leasing and
Construction Fees . The
Property Management, Leasing and Construction Fees payable to the
Advisor or its Affiliates as set forth in
Section 8(c).
Prospectus
. As such term is defined in the
Declaration of Trust.
Real Estate Commission Fee on
Sale of Property . The
Real Estate Commission Fees on Sale of Property payable to the
Advisor or its Affiliates as set forth in
Section 8(d).
REIT . A real estate investment trust under
Section 856 of the Code.
Sale or Sales
. As such term is defined in the
Declaration of Trust.
Securities
. As such term is defined in the
Declaration of Trust.
Shareholders
. The record holders of the
Company’s Shares as maintained in the Advisor’s books
and records.
Shares . Any of the Company’s shares of
beneficial interest of any class or series, including the Common
Shares.
Soliciting Dealers
. As such term is defined in the
Declaration of Trust.
Termination Date
. The date of termination of the
Agreement.
Total Assets
. As such term is defined in the
Declaration of Trust.
Trustee . A member of the Board of Trustees of the
Company.
2%/25% Guidelines
. The requirement pursuant to the
North American Securities Administrators Association, Inc.’s
Statement of Policy Regarding Real Estate Investment Trusts, as
amended from time to time, that, in any 12 month period, 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.
2. Appointment . Each of the
Company and the Operating Partnership hereby appoints the Advisor
to serve as its advisor on the terms and conditions set forth in
this Agreement, and the Advisor hereby accepts such
appointment.
3. Duties of the Advisor .
The Advisor undertakes to use its best efforts to present to the
Company potential investment opportunities and to provide 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. The Advisor shall devote
sufficient resources to the administration of the Company to
discharge its obligations hereunder. In performance of this
undertaking, subject to the supervision of the Board and consistent
with the provisions set forth herein and in Declaration of Trust
and Bylaws of the Company, the Advisor shall, either directly or by
engaging an Affiliate:
(a) serve as the Company’s
investment and financial advisor and provide research and economic
and statistical data in connection with the Company’s assets
and investment policies;
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(b) provide the daily management of
the Company and perform and supervise the various administrative
functions reasonably necessary for the management of the
Company;
(c) maintain and preserve the books
and records of the Company, including share books and records
reflecting a record of the Shareholders and their ownership of the
Company’s uncertificated Shares;
(d) investigate, select, and, on
behalf of the Company, engage and conduct business with such
Persons as the Advisor deems necessary to the proper performance of
its obligations hereunder, including but not limited to
consultants, accountants, correspondents, lenders, technical
advisors, attorneys, brokers, underwriters, corporate fiduciaries,
escrow agents, depositaries, custodians, agents for collection,
insurers, insurance agents, banks, builders, developers, property
owners, real estate management companies, real estate operating
companies, securities investment advisors, mortgagors, and any and
all agents for any of the foregoing, including Affiliates of the
Advisor, and Persons acting in any other capacity deemed by the
Advisor necessary or desirable for the performance of any of the
foregoing services, including but not limited to entering into
contracts in the name of the Company with any of the
foregoing;
(e) consult with the officers and
the Board of the Company and assist the Board in the formulation
and implementation of the Company’s financial policies, and,
as necessary, furnish the Board with advice and recommendations
with respect to the making of investments consistent with the
investment objectives and policies of the Company and in connection
with any borrowings proposed to be undertaken by the
Company;
(f) subject to the provisions of
Sections 3(h) and 4 hereof, (i) locate, analyze and
select potential investments in Properties, (ii) structure and
negotiate the terms and conditions of transactions pursuant to
which investment in Properties will be made; (iii) make
investments in Properties on behalf of the Company or the Operating
Partnership in compliance with the investment objectives and
policies of the Company; (iv) arrange for financing and
refinancing and make other changes in the asset or capital
structure of, and dispose of, reinvest the proceeds from the sale
of, or otherwise deal with the investments in, Property;
(v) enter into leases and service contracts for Property and,
to the extent necessary, perform all other operational functions
for the maintenance and administration of such Property;
(vi) select Joint Venture partners, structure corresponding
agreements and oversee and monitor these relationships;
(vii) oversee Affiliated and non-Affiliated Persons with whom
the Advisor contracts to perform certain of the services required
to be performed under this Agreement; (viii) manage accounting
and other record keeping functions for the Company and the
Operating Partnership; and (ix) recommend liquidity events to
the Board when appropriate;
(g) provide the Board with periodic
reports regarding prospective investments in Properties;
(h) obtain the prior approval of the
Board (including a majority of all Independent Trustees) for
any and all investments in, or financings or dispositions of,
Properties, except as described herein;
(i) negotiate on behalf of the
Company with banks or lenders for loans to be made to the Company,
and negotiate on behalf of the Company with investment banking
firms and broker-dealers or negotiate private sales of Shares and
Securities or obtain loans for the Company, but in no event in such
a way so that the Advisor shall be acting as broker-dealer or
underwriter; and provided, further, that any fees and costs payable
to third parties incurred by the Advisor in connection with the
foregoing shall be the responsibility of the Company;
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(j) obtain reports (which may be
prepared by the Advisor or its Affiliates), where appropriate,
concerning the value of investments or contemplated investments of
the Company in Properties;
(k) from time to time, or at any
time reasonably requested by the Board, make reports to the Board
of its performance of services to the Company under this Agreement,
including reports with respect to potential conflicts of interest
involving the Advisor or any of its Affiliates;
(l) provide the Company with all
necessary cash management services;
(m) do all things necessary to
assure its ability to render the services described in this
Agreement;
(n) deliver to or maintain on behalf
of the Company copies of all appraisals obtained in connection with
the investments in Properties; and
(o) notify the Board of all proposed
material transactions before they are completed.
Notwithstanding the foregoing, the
Advisor may delegate any of the foregoing duties to any Person so
long as the Advisor or any Affiliate remains responsible for the
performance of the duties set forth in this
Section 3.
4. Authority of Advisor
.
(a) Pursuant to the terms of this
Agreement (including the restrictions included in this
Section 4 and in Section 7), and subject to the
continuing and exclusive authority of the Board over the management
of the Company, the Board hereby delegates to the Advisor the
authority to (1) locate, analyze and select investment
opportunities, (2) structure the terms and conditions of
transactions pursuant to which investments will be made or acquired
for the Company or the Operating Partnership, (3) acquire
Properties in compliance with the investment objectives and
policies of the Company, (4) arrange for financing or
refinancing of Properties, (5) enter into leases and service
contracts for the Company’s Properties, including oversight
of Affiliated companies that perform property management services
for the Company, (6) oversee non-affiliated property managers
and other non-affiliated Persons who perform services for the
Company; and (7) undertake accounting and other record-keeping
functions at the Property level.
(b) Notwithstanding the foregoing,
any investment in Properties, including any acquisition of Property
by the Company or the Operating Partnership (as well as any
financing acquired by the Company or the Operating Partnership in
connection with such acquisition), will require the prior approval
of the Board. The Company shall not purchase or lease properties in
which the Advisor or its Affiliates has an interest without a
determination by a majority of the Board, including a majority of
any Independent Trustees not otherwise interested in such
transaction, that such transaction is fair and commercially
reasonable to the Company and at a price to the Company no greater
than the cost of the property to the Advisor or its Affiliates,
unless there is substantial justification for any amount that
exceeds such cost and such excess amount is determined to be
reasonable. In no event shall the Company acquire any such property
at an amount in excess of its current Appraised Value. The Company
shall not sell or lease properties to the Advisor or its Affiliates
or to the Company’s Trustees unless a majority of the Board;
including a majority of any Independent Trustees not otherwise
interested in the transaction, determine the transaction is fair
and reasonable to the Company.
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(c) If a transaction requires
approval by the Independent Trustees, the Advisor will deliver to
the Independent Trustees all documents required by them to properly
evaluate the proposed investment in the Property.
The Board may, at any time upon the
giving of notice to the Advisor, modify or revoke the authority set
forth in this Section 4. If and to the extent the Board so
modifies or revokes the authority contained herein, the Advisor
shall henceforth submit to the Board for prior approval such
proposed transactions involving investments in Property as
thereafter require prior approval, provided however, that such
modification or revocation sha
