SECOND AMENDED AND
RESTATED
ADVISORY AGREEMENT
BETWEEN
WINTHROP REALTY
TRUST,
WRT REALTY, L.P.
AND
FUR ADVISORS LLC
Dated as of March 5, 2009
SECOND AMENDED AND RESTATED
ADVISORY AGREEMENT
THIS AGREEMENT , made as of March 5, 2009, among WINTHROP
REALTY TRUST , an Ohio business trust corporation (the
“Trust”), WRT REALTY, L.P. , a Delaware limited
partnership (the “Operating Partnership”, and together
with the Trust, the “Company”), and FUR ADVISORS
LLC (the “Advisor”).
WHEREAS , pursuant to that certain Amended and Restated
Advisory Agreement, dated as of November 26, 2005, between the
Trust and the Advisor, (as amended, the “Original
Agreement”), the Advisor has been retained to provide, among
other things, certain asset management, investor relations and
accounting services to the Trust;
WHEREAS , the Operating Partnership holds substantially
all of the Trust’s assets;
WHEREAS , the Trust and the Advisor desire to amend and
restate the Original Agreement to, among other things, add the
Operating Partnership as a party and amend the Base Fee payable to
the Advisor.
NOW, THEREFORE , in consideration of the premises and of the
mutual covenants herein contained, it is agreed as
follows:
ARTICLE I
RETENTION OF
ADVISOR
Subject to the terms and conditions hereinafter
set forth, the Company hereby retains the Advisor to undertake the
duties and responsibilities hereinafter set forth. By
its execution and delivery of this Agreement, the Advisor
represents and warrants that (i) it is duly organized, validly
existing, in good standing under the laws of the state of Delaware
and has all requisite power and authority to enter into and perform
its obligations under this Agreement and (ii) the person signing
this Agreement for the Advisor is duly authorized to execute
this Agreement on the Advisor’s behalf.
ARTICLE II
RESPONSIBILITIES OF
ADVISOR
2.1 General
Responsibility . Subject to the supervision of
the Board, the Advisor shall:
(i) serve as the Company’s
investment and financial advisor and recommend changes in the
Company’s investment policies, when appropriate;
(ii) investigate and evaluate
investment opportunities and recommend them to the
Board;
(iii) administer the day-to-day
operations of the Company;
(iv) investigate, select and conduct
relations and enter into appropriate contracts on behalf of the
Company with other individuals, corporations and entities in
furtherance of the investment activities of the Company;
(v) acquire and dispose of
investments and funds of the Company, handle, prosecute and settle
any claims of the Company and handle, defend and settle claims
against the Company;
(vi) invest and reinvest any money of
the Company;
(vii) negotiate, as appropriate, on
behalf of the Company with investment banking firms, banks and
other institutions or investors for public or private sales of
securities of the Company or for other financing on behalf of the
Company;
(viii) conduct relations on behalf of
the Trust with the Trust’s beneficiaries and the Operating
Partnership with the Operating Partnership’s partners and
with securities exchanges and dealers making markets in the
Trust’s or the Operating Partnership’s
securities;
(ix) establish one or more bank
accounts in the name of the Company and deposit into and disburse
from such accounts any moneys on behalf of the Company, provided
that no funds in any such account shall be commingled with funds of
the Advisor, and the Advisor shall as requested by the Board render
appropriate accountings of such deposits and payments to the
Board;
(x) administer such day-to-day
bookkeeping and accounting functions as are required for the proper
management of the assets of the Company and prepare or cause to be
prepared such reports (other than the preparation and filing of tax
returns) as may be required by any governmental authority in
connection with the ordinary conduct of the Company’s
business, including without limitation, periodic reports, returns
or statements required under the Securities Exchange Act of 1934,
as amended, the Internal Revenue Code of 1986, as amended (the
“Code”), the securities and tax statutes of any
jurisdiction in which the Company is obligated to file reports or
the rules and regulations promulgated under any of the
foregoing;
(xi) from time to time, enter into
Property Management Agreements and Construction Management
Agreements (each as defined below), upon terms set forth in Article
4.2 of this Agreement, in consultation with the Board;
(xii) from time to time, or at any
time requested by the Board, make reports to the Board of its
performance of the foregoing services; and
(xiii) cause the Company to obtain
insurance covering such risks, with such insurers and on such terms
as the Company may reasonably determine.
2.2
Authority . The Advisor shall have full
discretion and authority pursuant to this Agreement to perform the
duties and services specified in Section 2.1 hereof in such manner
as the Advisor reasonably considers appropriate subject to the
terms and restrictions contained in the organizational documents of
the Trust or the Operating Partnership, as amended from time to
time. In furtherance of the foregoing, the Company
hereby designates and appoints the Advisor or its designee as the
agent and attorney-in-fact of the Company, with full power and
authority and without further approval of the Company, for purposes
of accomplishing on its behalf any of the foregoing matters or any
matters which are properly the subject matter of this
Agreement. The Advisor may execute, in the name and on
behalf of the Company and its affiliates all such documents and
take all such other actions which the Advisor reasonably considers
necessary or advisable to carry out its duties
hereunder.
ARTICLE III
INDEMNIFICATION
3.1
Indemnity . (a) The Company shall indemnify and
hold harmless the Advisor, and its members, officers, affiliates,
agents and employees, from and against any and all liability,
claims, demands, expenses and fees, fines, suits, losses and causes
of action of any and every kind or nature arising from or in any
way connected with the performance by the Advisor of its
obligations under this Agreement, other than any liability, claim,
demand, expense, fee, suit, loss or cause of action arising from or
in any way connected with (i) any acts of the Advisor, or its
members, officers, affiliates, agents or employees, outside the
scope of the authority of the Advisor under this Agreement unless
such person acted in good faith and reasonably believed that his
conduct was within the scope of authority of the Advisor under this
Agreement, or (ii) the gross negligence, willful misconduct or
material breach of this Agreement or the violation of applicable
laws by the Advisor, its members, officers, affiliates, agents or
employees. In addition, Advisor shall be named as an
additional insured on all policies of insurance maintained by the
Company including, without limitation, the Commercial General
Liability, Comprehensive Automobile Liability, Umbrella and Excess
Liability Insurance policy. Certificates of Insurance
evidencing compliance with the provisions of the immediately
preceding sentence shall be furnished to the Advisor on
request.
(b) The Advisor shall indemnify and hold
harmless the Trust, the Operating Partnership and their respective
Trustees, officers, partners, affiliates, agents and employees,
from and against any and all liability, claims, demands, expenses
and fees, fines, suits, losses and causes of action of any and
every kind or nature arising from third party actions and connected
with the performance by the Advisor of its obligations under this
Agreement to the extent caused by (i) any acts of the Advisor, or
its members, officers, affiliates, agents or employees, outside the
scope of the authority of the Advisor under this Agreement unless
such person acted in good faith and reasonably believed that his
conduct was within the scope of authority of the Advisor under this
Agreement, or (ii) the gross negligence, willful misconduct or
material breach of this Agreement or the violation of applicable
laws by the Advisor, its members, officers, affiliates, agents or
employees.
3.2
Additional Costs; Survival . The obligation to indemnify set
forth in Section 3.1 above shall include the payment of reasonable
attorneys’ fees and investigation costs, as well as other
reasonable costs and expenses incurred by the indemnified party in
connection with any such claim. At the option of, and
upon receipt of notice from, the indemnified party, the
indemnifying party shall promptly and diligently defend any such
claim, demand, action or proceeding. The provisions of
Sections 3.1 and 3.2 hereof shall survive the expiration or earlier
termination of this Agreement.
ARTICLE IV
COMPENSATION
The Advisor agrees to accept from the Company,
the compensation set forth in this Article IV as full and complete
consideration for all services to be rendered by the Advisor
pursuant to this Agreement. Except as hereinafter
provided, neither the Advisor nor any of its affiliates shall be
entitled to receive any other fees or compensation relating to the
Company or its properties, including but not limited to leasing
commissions, acquisition fees, disposition fees or loan
fees.
4.1 Annual
Asset Management Fee . The Advisor shall be entitled to
receive an asset management fee, which shall be payable in arrears
on a quarterly basis, equal to the amount by which (i) the Base
Fee, exceeds (ii) an amount equal to 50% of any amounts received by
WRP Sub-Management LLC in connection with its providing accounting
and other non-loan origination and loan acquisition services for
the benefit of Concord Debt Holdings LLC and its
subsidiaries. If the amount determined for a calendar
quarter pursuant to clause (ii) of the foregoing sentence exceeds
the amount determined for such calendar quarter pursuant to clause
(i) of the foregoing sentence, such excess amount, together with
interest at a rate of 6% per annum shall be applied against future
amounts due under this Section 4.1 and, if such excess amount is
not fully applied against future amounts within eight calendar
quarters, such amount then remaining shall be paid by the Advisor
to FUR within 30 days of such determination. The
following terms have the following meanings:
“Base Fee” – means an amount
equal to (i) $561,000, which represents 1.5% of the issuance price
of the Trust’s Series B-1 Cumulative Convertible Redeemable
Preferred Shares outstanding at the date hereof plus (ii) 1.5% of
the Issuance Price of the issued and outstanding Equity Securities
of the Trust and the Operating Partnership plus (iii) .25% of any
equity contribution by a third party to a joint venture managed by
the Trust or the Operating Partnership, in each case pro rated to
the extent that an equity security was not issued for the entire
quarterly period.
“Common Shares” – means common
shares of beneficial interest of the Trust.
“Equity Securities” – means
Common Shares, convertible preferred shares, convertible debt,
perpetual preferred shares which do not require dividend payments
and, in the case of the Operating Partnership limited partnership
interests issued to a Person other than the Trust or its subsidiary
but shall not include the Trust’s Series B-1 Cumulative
Convertible Redeemable Preferred Shares.
“Issuance Price” – means, with
respect to future issuanc
