EXHIBIT 10.37
ADVISORY AGREEMENT
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, dated as of January 30, 2000, is between XXXXX
REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation (the "Company"), and
XXXXX CAPITAL, INC., a Georgia corporation (the "Advisor").
W I T N E S S E T H
WHEREAS, the Company has issued shares of its common stock, par value $.01,
to the public, has registered with the Securities and Exchange Commission
certain additional shares of its common stock to be offered to the public
("Shares") and may subsequently issue securities other than such Shares
("Securities");
WHEREAS, the Company intends to continue to qualify as a REIT (as defined
below), and to invest its funds in investments permitted by the terms of the
Company's Articles of Incorporation and Sections 856 through 860 of the Code (as
defined below);
WHEREAS, the Company desires to avail itself 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
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, 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:
1. Definitions. As used in this Advisory Agreement (the "Agreement"), the
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following terms have the definitions hereinafter indicated:
Acquisition Expenses. Any and all expenses incurred by the Company, the
Advisor, or any Affiliate of either in connection with the selection or
acquisition of any Property, whether or not acquired, including, without
limitation, legal fees and expenses, travel and communications expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, and title insurance.
Acquisition Fees. Any and all fees and commissions, exclusive of
Acquisition Expenses, paid by any person or entity to any other person or entity
(including any fees or commissions paid by or to any Affiliate of the Company or
the Advisor) in connection with making or investing in mortgage loans and the
selection or acquisition of any Property, including, without limitation, real
estate commissions, acquisition fees, finder's fees, selection fees,
nonrecurring management fees, consulting fees, loan fees, points, or any other
fees or commissions of a similar nature.
Advisor. Xxxxx Capital, Inc., a Georgia corporation, any successor advisor
to the Company, or any person or entity to which Xxxxx Capital, Inc. or any
successor advisor subcontracts substantially all of its functions.
Affiliate or Affiliated. As to any individual, corporation, partnership,
trust or other association (other than the Excess Shares Trust), (i) any Person
or entity directly or indirectly; through one or more intermediaries
controlling, controlled by, or under common control with another person or
entity; (ii) any Person or entity, directly or indirectly owning or controlling
ten percent (10%) or more of the outstanding voting securities of another Person
or entity; (iii) any officer, director, partner, or trustee of such Person or
entity; (iv) any Person ten percent (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) if such other Person or entity is an
officer, director, partner, or trustee of a Person or entity, the Person or
entity for which such Person or entity acts in any such capacity.
Appraised Value. Value according to an appraisal made by an Independent
Appraiser.
Articles of Incorporation. 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.
Average Invested Assets. For a specified period, the average of the
aggregate book value of the assets of the Company invested, directly or
indirectly, in Properties and Loans 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. 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. The bylaws of the Company, as the same are in effect from time to
time.
Cash from Financings. Net cash proceeds realized by the Company from the
financing of Company Property or from the refinancing of any Company
indebtedness.
Cash from Sales. 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. Cash from Sales shall not include
Cash from Financings.
Cash from Sales and Financings. The total sum of Cash from Sales and Cash
from Financings.
Cause. With respect to the termination of this Agreement, fraud, criminal
conduct, willful misconduct or willful or negligent breach of fiduciary duty by
the Advisor, breach of
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this Agreement, a default by the Sponsor under the guarantee by the Sponsor to
the Company or the bankruptcy of the Sponsor.
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.
Company. Xxxxx Real Estate Investment Trust, Inc., a corporation organized
under the laws of the State of Maryland.
Company Property. Any and all property, real, personal or otherwise,
tangible or intangible, which is transferred or conveyed to the Company or the
Partnership (including all rents, income, profits and gains therefrom), and
which is owned or held by, or for the account of, the Company or the
Partnership.
Competitive Real Estate Commission. A real estate or brokerage commission
for the purchase or sale of property which is reasonable, customary, and
competitive in light of the size, type, and location of the property. The total
of all real estate commissions paid by the Company to all Persons (including the
Subordinated Disposition Fee payable to the Advisor) in connection with any Sale
of one or more of the Company's Properties shall not exceed the lesser of (i) a
Competitive Real Estate Commission or (ii) six percent of the gross sales price
of the Property or Properties.
Contract Purchase Price. The amount actually paid or allocated (as of the
date of purchase) to the purchase, development, construction or improvement of
Property, exclusive of Acquisition Fees and Acquisition Expenses.
Contract Sales Price. The total consideration received by the Company for
the sale of a Company Property.
Cumulative Return. For the period for which the calculation is being made,
the percentage resulting from dividing (A) the total Dividends paid on each
Dividends distribution date during such period (without regard to Dividends paid
out of Cash from Sales and Financings), by (B) the product of (i) the average
Invested Capital for such period (calculated on a daily basis), and (ii) the
number of years (including fractions thereof) elapsed during such period.
Director. A member of the Board of Directors of the Company.
Dividends. Any dividends or other 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.
Equity Interest. The stock of or other interests in, or warrants or other
rights to purchase the stock of or other interests in, any entity that has
borrowed money from the
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Company or that is a tenant of the Company or that is a parent or controlling
Person of any such borrower or tenant.
Equity Shares. Transferable shares of beneficial interest of the Company
of any class or series, including common shares or preferred shares.
Good Reason. With respect to the termination of this Agreement, (i) any
failure to obtain a satisfactory agreement from any successor to the Company to
assume and agree to perform the Company's obligations under this Agreement; or
(ii) any material breach of this Agreement of any nature whatsoever by the
Company.
Gross Proceeds. The aggregate purchase price of all Shares sold for the
account of the Company through an Offering, without deduction for Selling
Commissions, volume discounts, the marketing support fee and due diligence
expense reimbursement or Organization and Offering Expenses. For the purpose of
computing Gross Proceeds, the purchase price of any Share for which reduced
Selling Commissions are paid to the Managing Dealer or a Soliciting Dealer
(where net proceeds to the Company are not reduced) shall be deemed to be
$10.00.
Independent Appraiser. 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.
Independent Director. A Director who is not and within the last two years
has not been directly or indirectly associated with the Advisor by virtue of (i)
ownership of an interest in the Advisor or its Affiliates, (ii) employment by
the Advisor or its Affiliates, (iii) service as an officer or director of the
Advisor or its Affiliates, (iv) performance of services, other than as a
Director, for the Company, (v) service as a director or trustee of more than
three real estate investment trusts advised by the Advisor, or (vi) maintenance
of a material business or professional relationship with the Advisor or any of
its Affiliates. A business or professional relationship is considered material
if the gross revenue derived by the Director from the Advisor and Affiliates
exceeds 5% of either the Director's annual gross revenue during either of the
last two years or the Director's net worth on a fair market value basis. An
indirect relationship shall include circumstances in which a Director's spouse,
parents, children, siblings, mothers- or fathers-in-law, sons- or daughters-in-
law, or brothers- or sisters-in-law is or has been associated with the Advisor,
any of its Affiliates, or the Company.
Independent Expert. A person or entity with no material current or prior
business or personal relationship with the Advisor or the Directors and 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.
Invested Capital. The amount calculated by multiplying the total number of
Shares purchased by stockholders by the issue price, reduced by the portion of
any Dividend that is attributable to Net Sales Proceeds and by any amounts paid
by the Company to repurchase Shares pursuant to the Company's plan for
redemption of Shares.
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Joint Ventures. The joint venture or general partnership arrangements in
which the Company or the Partnership is a co-venturer or general partner which
are established to acquire Properties.
Listing. The listing of the Shares of the Company on a national securities
exchange or over-the-counter market.
Managing Dealer. Xxxxx Investment Securities, Inc., an Affiliate of the
Advisor, or such entity selected by the Board of Directors to act as the
managing dealer for an Offering. Xxxxx Investment Securities, Inc. is a member
of the National Association of Securities Dealers, Inc.
Net Income. 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.
Net Sales Proceeds. In the case of a transaction described in clause (i)
(A) of the definition of Sale, the proceeds of any such transaction less the
amount of all real estate commissions and closing costs paid by the Company. In
the case of a transaction described in clause (i) (B) of such definition, Net
Sales Proceeds means the proceeds of any such transaction less the amount of any
legal and other selling expenses incurred in connection with such transaction.
In the case of a transaction described in clause (i) (C) of such definition, Net
Sales Proceeds means the proceeds of any such transaction actually distributed
to the Company from the Joint Venture. In the case of a transaction or series of
transactions described in clause (i) (D) of the definition of Sale, Net Sales
Proceeds means the proceeds of any such transaction less the amount of all
commissions and closing costs paid by the Company. In the case of a transaction
described in clause (ii) of the definition of Sale, Net Sales Proceeds means the
proceeds of such transaction or series of transactions less all amounts
generated thereby and reinvested in one or more Properties within 180 days
thereafter and less the amount of any real estate commissions, closing costs,
and legal and other selling expenses incurred by or allocated to the Company in
connection with such transaction or series of transactions. Net Sales Proceeds
shall also include, in the case of any Property consisting of a building only,
any amounts that the Company determines, in its discretion, to be economically
equivalent to proceeds of a Sale. Net Sales Proceeds shall not include any
reserves established by the Company in its sole discretion.
Offering. Any public offering of Shares pursuant to a Prospectus which is
registered with the SEC.
Operating Expenses. All costs and expenses incurred by the Company, as
determined under generally accepted accounting principles, which in any way are
related to the operation of the Company or to Company business, including
advisory fees, but excluding (i) the expenses of raising capital such as
Organizational and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other
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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) the Advisor's subordinated 10% share of Net Sales Proceeds,
(vi) the Subordinated Incentive Fee, (vii) the Property Management Fee and
(viii) Acquisition Fees and Acquisition Expenses, real estate commissions on the
sale of property, and other expenses connected with the acquisition, 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).
Organizational and Offering Expenses. Any and all costs and expenses,
other than Selling Commissions and the 2.5% marketing support and due diligence
expense reimbursement fee, incurred by the Advisor or any Affiliate in
connection with the formation, qualification and registration of the Company and
the marketing and distribution of Shares, including, without limitation, the
following: legal, accounting and escrow fees; printing, amending, supplementing,
mailing and distributing costs; filing, registration and qualification fees and
taxes; telegraph and telephone costs; and all advertising and marketing
expenses, including the costs related to investor and broker-dealer sales
meetings. The Organizational and Offering Expenses paid by the Company in
connection with formation of the Company will not exceed 3% of the Gross
Proceeds raised in connection with any Offering.
Partnership. Xxxxx Operating Partnership, L.P., a Delaware limited
partnership formed to own and operate properties on behalf of the Company.
Person. 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.
Property or Properties. (i) The real properties, including the buildings
located thereon, or (ii) the real properties only, or (iii) the buildings only,
which are acquired by the Company, either directly or through joint venture
arrangements or other partnerships.
Prospectus. "Prospectus" has the meaning set forth in Section 2(10) of the
Securities Act of 1933, as amended (the "Securities Act"), including a
preliminary Prospectus, an offering circular as described in Rule 256 of the
General Rules and Regulations under the Securities Act or, in the case of an
intrastate offering, any document by whatever name known, utilized for the
purpose of offering and selling securities to the public.
Real Estate Asset Value. The amount actually paid or allocated to the
purchase, development, construction or improvement of a Property, exclusive of
Acquisition Fees and Acquisition Expenses.
Registration Statement. The most currently filed Registration Statement on
Form S-11 with the Securities and Exchange Commission, of which the Prospectus
is a part.
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REIT. A "real estate investment trust" under Sections 856 through 860 of
the Code.
Sale or Sales. (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 or portion thereof, including the
lease of any Property consisting of the building only, and including any event
with respect to any Property which 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 in which it is a co-venturer or partner; or (C) any Joint Venture in
which the Company or the Partnership as a co-venturer or partner sells, grants,
transfers, conveys, or relinquishes its ownership of any Property or portion
thereof, including any event with respect to any Property which 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 within 180 days thereafter.
Securities. Any Equity Shares, Excess Shares, as such term is defined in
the Company's Articles of Incorporation, any other stock, shares or other
evidences of equity or beneficial or other interests, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities" or any certificates of interest, shares or
participations in, temporary or interim certificates for, receipts for,
guarantees of, or warrants, options or rights to subscribe to, purchase or
acquire, any of the foregoing.
Shares. Any shares of the Company's common stock, par value $.01 per
share, previously issued by the Company pursuant to an effective registration
statement and shares currently registered with the Securities and Exchange
Commission pursuant to the Registration Statement.
Soliciting Dealers. Broker-dealers who are members of the National
Association of Securities Dealers, Inc., or that are exempt from broker-dealer
registration, and who, in either case, have executed participating broker or
other agreements with the Managing Dealer to sell Shares.
Sponsor. Any Person directly or indirectly instrumental in organizing,
wholly or in part, the Company or any Person who will control, manage or
participate in the management of the Company, and any Affiliate of such Person.
Not included is any Person whose only relationship with the Company is that of
an independent property manager of Company assets, and whose only compensation
is as such. Sponsor does not include wholly independent third parties such as
attorneys, accountants, and underwriters whose only compensation is for
professional services.
Stockholders. The record holders of the Company's Shares as maintained in
the Company's books and records.
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Stockholders' 8% Return. As of each date, an aggregate amount equal to an
8% cumulative, noncompounded, annual return on Invested Capital.
Subordinated Disposition Fee. The Subordinated Disposition Fee as defined
in Paragraph 9(b).
Subordinated Incentive Fee. The fee payable to the Advisor under certain
circumstances if the Shares are listed on a national securities exchange or
over-the-counter market as defined in Paragraph 9(d).
Subordinated Share of Net Sale Proceeds. The Subordinated Share of Net
Sales Proceeds as defined in Paragraph 9(c).
Termination Date. The date of termination of the Agreement.
Total Property Cost. With regard to any Company Property, an amount equal
to the sum of the Real Estate Asset Value of such Property plus the Acquisition
Fees and Acquisition Expenses paid in connection with such Property.
2%/25% Guidelines. The requirement pursuant to the guidelines of the North
American Securities Administrators Association, Inc. 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.
Valuation. An estimate of value of the assets of the Company as determined
by an Independent Expert.
2. Appointment. The Company hereby appoints the Advisor to serve as its
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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
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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. In performance of this undertaking, subject to the
supervision of the Board and consistent with the provisions of the Prospectus,
Articles of Incorporation 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
stock books and records reflecting a record of the Stockholders and
their ownership of the Company's uncertificated Shares and acting as
transfer agent for 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, 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 Paragraphs 3(g) 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 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;
and (v) enter into leases and service contracts for Company Property
and, to the extent necessary, perform all other operational functions
for the maintenance and administration of such Company Property;
(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 Directors) for any and all investments in Properties;
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(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;
(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;
(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.
4. Authority of Advisor.
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(a) Pursuant to the terms of this Agreement (including the restrictions
included in this Paragraph 4 and in Paragraph 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 Partnership, (3) acquire Properties in compliance with the
investment objectives and policies of the Company, (4) arrange for financing or
refinancing Property, (5) enter into leases and service contracts for the
Company's Property, 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 Partnership (as well as any
financing acquired by the Company or the Partnership in connection with such
acquisition), will require the prior approval of the Board.
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(c) If a transaction requires approval by the Independent Directors, the
Advisor will deliver to the Independent Directors all documents required by them
to properly evaluate the proposed investment in the Property.
The prior approval of a majority of the Independent Directors and a
majority of the Board not otherwise interested in the transaction will be
required for each transaction with the Advisor or its Affiliates.
The Board may, at any time upon the giving of notice to the Advisor, modify
or revoke the authority set forth in this Paragraph 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 shall be effective upon receipt by
the Advisor and shall not be applicable to investment transactions to which the
Advisor has committed the Company prior to the date of receipt by the Advisor of
such notification.
5. Bank Accounts. The Advisor may establish and maintain one or more bank
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accounts in its own name for the account of the Company or in the name of the
Company and may collect and deposit into any such account or accounts, and
disburse from any such account or accounts, any money on behalf of the Company,
under such terms and conditions as the Board may approve, provided that no funds
shall be commingled with the funds of the Advisor; and the Advisor shall from
time to time render appropriate accountings of such collections and payments to
the Board and to the auditors of the Company.
6. Records; Access. The Advisor shall maintain appropriate records of all
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its activities hereunder and make such records available for inspection by the
Board and by counsel, auditors and authorized agents of the Company, at any time
or from time to time during normal business hours. The Advisor shall at all
reasonable times have access to the books and records of the Company.
7. Limitations on Activities. Anything else in this Agreement to the
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contrary notwithstanding, the Advisor shall refrain from taking any action
which, in its sole judgment made in good faith, would (a) adversely affect the
status of the Company as a REIT, (b) subject the Company to regulation under the
Investment Company Act of 1940, as amended, or (c) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Company, its Shares or its Securities, or otherwise not be
permitted by the Articles of Incorporation or Bylaws of the Company, except if
such action shall be ordered by the Board, in which case the Advisor shall
notify promptly the Board of the Advisor's judgment of the potential impact of
such action and shall refrain from taking such action until it receives further
clarification or instructions from the Board. In such event the Advisor shall
have no liability for acting in accordance with the specific instructions of the
Board so given. Notwithstanding the foregoing, the Advisor, its directors,
officers, employees and stockholders, and stockholders, directors and officers
of the Advisor's Affiliates shall not be liable to the Company or to the Board
or stockholders for any act or omission by the
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Advisor, its directors, officers or employees, or stockholders, directors or
officers of the Advisor's Affiliates except as provided in Paragraphs 20 and 21
of this Agreement.
8. Relationship with Directors. Directors, officers and employees of the
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Advisor or an Affiliate of the Advisor or any corporate parents of an Affiliate,
or directors, officers or stockholders of any director, officer or corporate
parent of an Affiliate may serve as a Director and as officers of the Company,
except that no director, officer or employee of the Advisor or its Affiliates
who also is a Director or officer of the Company shall receive any compensation
from the Company for serving as a Director or officer other than reasonable
reimbursement for travel and related expenses incurred in attending meetings of
the Board.
9. Fees.
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(a) Acquisition Fees and Expenses. The Advisor may receive as compensation
payable by the Company for services rendered in connection with the
investigation, selection and acquisition (by purchase, investment or exchange)
of Property Acquisition Fees in an amount equal to up to 3% of Gross Proceeds
and Acquisition Expenses in an amount equal to up to .5% of Gross Proceeds. The
Acquisition Fees shall be reduced to the extent that, and, if necessary to
limit, the total compensation paid to all persons involved in the acquisition of
any Property to the amount customarily charged in arm's-length transactions by
other persons or entities rendering similar services as an ongoing public
activity in the same geographical location and for comparable types of
Properties and to the extent that other acquisition fees, finder's fees, real
estate commissions, or other similar fees or commissions are paid by any person
in connection with the transaction.
(b) Subordinated Disposition Fee. If the Advisor or an Affiliate provides
a substantial amount of the services (as determined by a majority of the
Independent Directors) in connection with the Sale of one or more Properties,
the Advisor or an Affiliate shall receive a Subordinated Disposition Fee equal
to the lesser of (i) one-half of a Competitive Real Estate Commission or (ii) 3%
of the sales price of such Property or Properties. The Subordinated Disposition
Fee will be paid only if Stockholders have received total Dividends in an amount
equal to the sum of their aggregate Invested Capital and their aggregate
Stockholders' 8% Return. To the extent that Subordinated Disposition Fees are
not paid by the Company on a current basis due to the foregoing limitation, the
unpaid fees will be accrued and paid at such time as the subordination
conditions have been satisfied. The Subordinated Disposition Fee may be paid in
addition to real estate commissions paid to non-Affiliates, provided that the
total real estate commissions paid to all Persons by the Company shall not
exceed an amount equal to the lesser of (i) 6% of the Contract Sales Price of a
Property or (ii) the Competitive Real Estate Commission. In the event this
Agreement is terminated prior to such time as the Stockholders have received
total Dividends in an amount equal to 100% of Invested Capital plus an amount
sufficient to pay the Stockholders' 8% Return through the Termination Date, an
appraisal of the Properties then owned by the Company shall be made and the
Subordinated Disposition Fee on Properties previously sold will be deemed earned
if the Appraised Value of the Properties then owned by the Company plus total
Dividends received prior to the Termination Date equals 100% of Invested Capital
plus an amount sufficient to pay the Stockholders' 8% Return through the
Termination Date. Upon Listing, if the Advisor has
12
accrued but not been paid such Subordinated Disposition Fee, then for purposes
of determining whether the subordination conditions have been satisfied,
Stockholders will be deemed to have received a Dividends in the amount equal to
the product of the total number of Shares outstanding and the average closing
price of the Shares over a period, beginning 180 days after Listing, of 30 days
during which the Shares are traded.
(c) Subordinated Share of Net Sales Proceeds. The Subordinated Share of
Net Sales Proceeds shall be payable to the Advisor in an amount equal to 10% of
Net Sales Proceeds remaining after the Stockholders have received Dividends
equal to the sum of the Stockholders' 8% Return and 100% of Invested Capital.
Following Listing, no Subordinated Share of Net Sales Proceeds will be paid to
the Advisor.
(d) Subordinated Incentive Fee. Upon Listing, the Advisor shall be
entitled to the Subordinated Incentive Fee in an amount equal to 10% of the
amount by which (i) the market value of the outstanding stock of the Company,
measured by taking the average closing price or average of bid and asked price,
as the case may be, over a period of 30 days during which the stock is traded,
with such period beginning 180 days after Listing (the "Market Value"), plus the
total of all Dividends paid to Stockholders from the Company's inception until
the date of Listing, exceeds (ii) the sum of (A) 100% of Invested Capital and
(B) the total Dividends required to be paid to the Stockholders in order to pay
the Stockholders' 8% Return from inception through the date of Listing. The
Company shall have the option to pay such fee in the form of cash, Shares, a
promissory note or any combination of the foregoing. The Subordinated Incentive
Fee will be reduced by the amount of any prior payment to the Advisor of a
deferred, Subordinated Share of Net Sales Proceeds from a Sale or Sales of a
Property. In the event the Subordinated Incentive Fee is paid to the Advisor
following Listing, no other performance fee will be paid to the Advisor.
(e) Loans from Affiliates. If any loans are made to the Company by an
Affiliate of the Advisor, the maximum amount of interest that may be charged by
such Affiliate shall be the lesser of (i) 1% above the prime rate of interest
charged from time to time by The Bank of New York and (ii) the rate that would
be charged to the Company by unrelated lending institutions on comparable loans
for the same purpose. The terms of any such loans shall be no less favorable
than the terms available between non-Affiliated Persons for similar commercial
loans.
(f) Changes to Fee Structure. In the event of Listing, the Company and the
Advisor shall negotiate in good faith to establish a fee structure appropriate
for a perpetual-life entity. A majority of the Independent Directors must
approve the new fee structure negotiated with the Advisor. In negotiating a new
fee structure, the Independent Directors shall consider all of the factors they
deem relevant, including, but not limited to: (i) the amount of the advisory fee
in relation to the asset value, composition and profitability of the Company's
portfolio; (ii) the success of the Advisor in generating opportunities that meet
the investment objectives of the Company; (iii) the rates charged to other REITs
and to investors other than REITs by Advisors performing the same or similar
services; (iv) additional revenues realized by the Advisor and its Affiliates
through their relationship with the Company, including loan
13
administration, underwriting or broker commissions, servicing, engineering,
inspection and other fees, whether paid by the Company or by others with whom
the Company does business; (v) the quality and extent of service and advice
furnished by the Advisor; (vi) the performance of the investment portfolio of
the Company, including income, conversion or appreciation of capital, and number
and frequency of problem investments; and (vii) the quality of the Property
portfolio of the Company in relationship to the investments generated by the
Advisor for its own account. The new fee structure can be no more favorable to
the Advisor than the current fee structure.
10. Expenses.
--------
(a) In addition to the compensation paid to the Advisor pursuant to
Paragraph 9 hereof, the Company shall pay directly or reimburse the Advisor for
all of the expenses paid or incurred by the Advisor in connection with the
services it provides to the Company pursuant to this Agreement, including, but
not limited to:
(i) the Company's Organizational and Offering Expenses; provided,
however, that within 60 days after the end of the month in which an Offering
terminates, the Advisor shall reimburse the Company for any Organizational and
Offering Expenses reimbursement received by the Advisor pursuant to this
Paragraph 10, to the extent that such reimbursement exceeds 3% of the Gross
Proceeds. The Advisor shall be responsible for the payment of all the Company's
Organizational and Offering Expenses in excess of 3% of the Gross Proceeds;
(ii) Acquisition Expenses incurred in connection with the selection and
acquisition of Properties at the lesser of the actual cost or 90% of the
competitive rate charged by unaffiliated persons providing similar goods and
services in the same geographic location;
(iii) the actual cost of goods and services used by the Company and
obtained from entities not affiliated with the Advisor, other than Acquisition
Expenses, including brokerage fees paid in connection with the purchase and sale
of securities;
(iv) interest and other costs for borrowed money, including discounts,
points and other similar fees;
(v) taxes and assessments on income or Property and taxes as an expense
of doing business;
(vi) costs associated with insurance required in connection with the
business of the Company or by the Board;
(vii) expenses of managing and operating Properties owned by the Company,
whether payable to an Affiliate of the Company or a non-affiliated Person.
(viii) all expenses in connection with payments to the Board and meetings
of the Board and Stockholders;
14
(ix) expenses associated with Listing or with the issuance and
distribution of Shares and Securities, such as selling commissions and fees,
advertising expenses, taxes, legal and accounting fees, Listing and registration
fees, and other Organization and Offering Expenses;
(x) expenses connected with payments of Dividends in cash or otherwise
made or caused to be made by the Company to the Stockholders;
(xi) expenses of organizing, revising, amending, converting, modifying,
or terminating the Company or the Articles of Incorporation;
(xii) expenses of maintaining communications with Stockholders, including
the cost of preparation, printing, and mailing annual reports and other
Stockholder reports, proxy statements and other reports required by governmental
entities;
(xiii) administrative service expenses (including personnel costs;
provided, however, that no reimbursement shall be made for costs of personnel to
the extent that such personnel perform services in transactions for which the
Advisor receives a separate fee); and
(xiv) audit, accounting and legal fees.
(b) Expenses incurred by the Advisor on behalf of the Company and
payable pursuant to this Paragraph 10 shall be reimbursed no less than monthly
to the Advisor. The Advisor shall prepare a statement documenting the expenses
of the Company during each quarter, and shall deliver such statement to the
Company within 45 days after the end of each quarter.
11. Other Services. Should the Board request that the Advisor or any
--------------
director, officer or employee thereof render services for the Company other than
set forth in Paragraph 3, such services shall be separately compensated at such
rates and in such amounts as are agreed by the Advisor and the Independent
Directors of the Company, subject to the limitations contained in the Articles
of Incorporation, and shall not be deemed to be services pursuant to the terms
of this Agreement.
12. Fidelity Bond. The Advisor shall maintain a fidelity bond for the
-------------
benefit of the Company which bond shall insure the Company from losses of up to
$200,000 per occurrence and shall be of the type customarily purchased by
entities performing services similar to those provided to the Company by the
Advisor.
13 Reimbursement to the Advisor. The Company shall not reimburse the
----------------------------
Advisor at the end of any fiscal quarter Operating Expenses that, in the four
consecutive fiscal quarters then ended (the "Expense Year") exceed (the "Excess
Amount") the greater of 2% of Average Invested Assets or 25% of Net Income (the
"2%/25% Guidelines") for such year. Any Excess Amount paid to the Advisor during
a fiscal quarter shall be repaid to the Company. If there is an Excess Amount in
any Expense Year and the Independent Directors determine that such excess was
justified, based on unusual and nonrecurring factors which they deem sufficient,
the Excess Amount may be carried over and included in Operating Expenses
15
in subsequent Expense Years, and reimbursed to the Advisor in one or more of
such years, provided that Operating Expenses in any Expense Year, including any
Excess Amount to be paid to the Advisor, shall not exceed the 2%/25% Guidelines.
Within 60 days after the end of any fiscal quarter of the Company for which
total Operating Expenses for the Expense Year exceed the 2%/25% Guidelines,
there shall be sent to the stockholders a written disclosure of such fact,
together with an explanation of the factors the Independent Directors considered
in determining that such excess expenses were justified. Such determination
shall be reflected in the minutes of the meetings of the Board of Directors. The
Company will not reimburse the Advisor or its Affiliates for services for which
the Advisor or its Affiliates are entitled to compensation in the form of a
separate fee. All figures used in the foregoing computation shall be determined
in accordance with generally accepted accounting principles applied on a
consistent basis.
14. Other Activities of the Advisor. Nothing herein contained shall
-------------------------------
prevent the Advisor from engaging in other activities, including, without
limitation, the rendering of advice to other Persons (including other REITs) and
the management of other programs advised, sponsored or organized by the Advisor
or its Affiliates; nor shall this Agreement limit or restrict the right of any
director, officer, employee, or stockholder of the Advisor or its Affiliates to
engage in any other business or to render services of any kind to any other
partnership, corporation, firm, individual, trust or association. The Advisor
may, with respect to any investment in which the Company is a participant, also
render advice and service to each and every other participant therein. The
Advisor shall report to the Board the existence of any condition or
circumstance, existing or anticipated, of which it has knowledge, which creates
or could create a conflict of interest between the Advisor's obligations to the
Company and its obligations to or its interest in any other partnership,
corporation, firm, individual, trust or association. The Advisor or its
Affiliates shall promptly disclose to the Board knowledge of such condition or
circumstance. If the Sponsor, Advisor, Director or Affiliates thereof have
sponsored other investment programs with similar investment objectives which
have investment funds available at the same time as the Company, it shall be the
duty of the Board (including the Independent Directors) to adopt the method set
forth in the Registration Statement or another reasonable method by which
properties are to be allocated to the competing investment entities and to use
their best efforts to apply such method fairly to the Company.
The Advisor shall be required to use its best efforts to present a
continuing and suitable investment program to the Company which is consistent
with the investment policies and objectives of the Company, but neither the
Advisor nor any Affiliate of the Advisor shall be obligated generally to present
any particular investment opportunity to the Company even if the opportunity is
of character which, if presented to the Company, could be taken by the Company.
The Advisor or its Affiliates may make such an investment in a property only
after (i) such investment has been offered to the Company and all public
partnerships and other investment entities affiliated with the Company with
funds available for such investment and (ii) such investment is found to be
unsuitable for investment by the Company, such partnerships and investment
entities.
16
In the event that the Advisor or its Affiliates is presented with a
potential investment which might be made by the Company and by another
investment entity which the Advisor or its Affiliates advises or manages, the
Advisor shall consider the investment portfolio of each entity, cash flow of
each entity, the effect of the acquisition on the diversification of each
entity's portfolio, rental payments during any renewal period, the estimated
income tax effects of the purchase on each entity, the policies of each entity
relating to leverage, the funds of each entity available for investment and the
length of time such funds have been available for investment. In the event that
an investment opportunity becomes available which is suitable for both the
Company and a public or private entity which the Advisor or its Affiliates are
Affiliated, then the entity which has had the longest period of time elapse
since it was offered an investment opportunity will first be offered the
investment opportunity. The Advisor may consider the property for private
placement only if such property is deemed inappropriate for any investment
entity which is advised or managed by the Advisor, including the Company.
15. Relationship of Advisor and Company. The Company and the Advisor are
-----------------------------------
not partners or joint venturers with each other, and nothing in this Agreement
shall be construed to make them such partners or joint venturers or impose any
liability as such on either of them.
16. Term; Termination of Agreement. This Agreement shall continue in
------------------------------
force until January 29, 2001, subject to an unlimited number of successive one-
year renewals upon mutual consent of the parties. It is the duty of the Board to
evaluate the performance of the Advisor or annually before renewing the
Agreement, and each such renewal shall be for a term of no more than one year.
17. Termination by Either Party. This Agreement may be terminated upon 60
---------------------------
days written notice without Cause or penalty, by either party (by a majority of
the Independent Directors of the Company or a majority of the Board of Directors
of the Advisor, as the case may be).
18. Assignment to an Affiliate. This Agreement may be assigned by the
--------------------------
Advisor to an Affiliate with the approval of a majority of the Board (including
a majority of the Independent Directors). The Advisor may assign any rights to
receive fees or other payments under this Agreement without obtaining the
approval of the Board. This Agreement shall not be assigned by the Company
without the consent of the Advisor, except in the case of an assignment by the
Company to a corporation or other organization which is a successor to all of
the assets, rights and obligations of the Company, in which case such successor
organization shall be bound hereunder and by the terms of said assignment in the
same manner as the Company is bound by this Agreement.
19. Payments to and Duties of Advisor upon Termination. Payments to the
--------------------------------------------------
Advisor pursuant to this Section 19 shall be subject to the 2%/25% Guidelines to
the extent applicable.
(a) After the Termination Date, the Advisor shall not be entitled to
compensation for further services hereunder except it shall be entitled to
receive from the Company within 30
17
days after the effective date of such termination all unpaid reimbursements of
expenses and all earned but unpaid fees payable to the Advisor prior to
termination of this Agreement.
(b) The Advisor shall promptly upon termination:
(i) pay over to the Company all money collected and held for the account
of the Company pursuant to this Agreement, after deducting any accrued
compensation and reimbursement for its expenses to which it is then entitled;
(ii) deliver to the Board a full accounting, including a statement
showing all payments collected by it and a statement of all money held by it,
covering the period following the date of the last accounting furnished to the
Board;
(iii) deliver to the Board all assets, including Properties, and documents
of the Company then in the custody of the Advisor; and
(iv) cooperate with the Company to provide an orderly management
transition.
20. Indemnification by the Company. The Company shall indemnify and hold
------------------------------
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or losses
arising in the performance of their duties hereunder, and related expenses,
including reasonable attorneys' fees, to the extent such liability, claims,
damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland or the
Articles of Incorporation of the Company. Notwithstanding the foregoing, the
Advisor shall not be entitled to indemnification or be held harmless pursuant to
this paragraph 20 for any activity which the Advisor shall be required to
indemnify or hold harmless the Company pursuant to paragraph 21. Any
indemnification of the Advisor may be made only out of the net assets of the
Company and not from Stockholders.
21. Indemnification by Advisor. The Advisor shall indemnify and hold
--------------------------
harmless the Company from contract or other liability, claims, damages, taxes or
losses and related expenses including attorneys' fees, to the extent that such
liability, claims, damages, taxes or losses and related expenses are not fully
reimbursed by insurance and are incurred by reason of the Advisor's bad faith,
fraud, willful misfeasance, misconduct, negligence or reckless disregard of its
duties, but the Advisor shall not be held responsible for any action of the
Board of Directors in following or declining to follow any advice or
recommendation given by the Advisor.
22. Notices. Any notice, report or other communication required or
-------
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is required by the Articles of
Incorporation, the Bylaws, or accepted by the party to whom it is given, and
shall be given by being delivered by hand or by overnight mail or other
overnight delivery service to the addresses set forth herein:
18
To the Board and to the Company: Xxxxx Real Estate Investment
Trust, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
To the Advisor: Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Either party may at any time give notice in writing to the other party of a
change in its address for the purposes of this Paragraph 22.
23. Modification. This Agreement shall not be changed, modified,
------------
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
24. Severability. The provisions of this Agreement are independent of and
------------
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
25. Construction. The provisions of this Agreement shall be construed and
------------
interpreted in accordance with the laws of the State of Georgia.
26. Entire Agreement. This Agreement contains the entire agreement and
----------------
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
27. Indulgences, not Waivers. Neither the failure nor any delay on the
------------------------
part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
28. Gender. Words used herein regardless of the number and gender
------
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
19
29. Titles not to Affect Interpretation. The titles of paragraphs and
-----------------------------------
subparagraphs contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
30. Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
31. Name. Xxxxx Capital, Inc. has a proprietary interest in the name
----
"Xxxxx." Accordingly, and in recognition of this right, if at any time the
Company ceases to retain Xxxxx Capital, Inc. or an Affiliate thereof to perform
the services of Advisor, the Company will, promptly after receipt of written
request from Xxxxx Capital, Inc., cease to conduct business under or use the
name "Xxxxx" or any diminutive thereof and the Company shall use its best
efforts to change the name of the Company to a name that does not contain the
name "Xxxxx" or any other word or words that might, in the sole discretion of
the Advisor, be susceptible of indication of some form of relationship between
the Company and the Advisor or any Affiliate thereof. Consistent with the
foregoing, it is specifically recognized that the Advisor or one or more of its
Affiliates has in the past and may in the future organize, sponsor or otherwise
permit to exist other investment vehicles (including vehicles for investment in
real estate) and financial and service organizations having "Xxxxx" as a part of
their name, all without the need for any consent (and without the right to
object thereto) by the Company or its Board.
32. Initial Investment. The Advisor has contributed to the Company
------------------
$200,000 (the "Initial Investment") in exchange for 20,000 units of limited
partnership interest ("Units") in Xxxxx Operating Partnership, L.P. The Advisor
or its Affiliates may not sell any of the Units purchased with the Initial
Investment while the Advisor acts in such advisory capacity to the Company,
provided, that such Units may be transferred to Affiliates of the Advisor. The
-------- ----
restrictions included above shall not apply to any Shares acquired by the
Advisor or its Affiliates other than the Units acquired through the Initial
Investment. The Advisor shall not vote any Shares it now owns, or hereafter
acquires, in any vote for the election of Directors or any vote regarding the
approval or termination of any contract with the Advisor or any of its
Affiliates.
20
IN WITNESS WHEREOF, the parties hereto have executed this Advisory
Agreement as of the date and year first above written.
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx III
----------------------------------
TITLE: PRESIDENT
----------------------------------
XXXXX CAPITAL, INC.
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx, III
----------------------------------
Title: PRESIDENT
----------------------------------
21
