Exhibit 10.4
Management Agreement
This Agreement is dated as of October 1, 2008, by and between Bella Vista
Capital, Inc., a Maryland corporation (the "Company"), and RMRF Enterprises,
Inc., dba Cupertino Capital, a California corporation (the "Manager"), with
respect to the following:
The Company desires to retain the Manager to manage the investments of the
Company and to perform certain administrative services for the Company in the
manner and on the terms set forth herein;
In consideration of the following mutual agreements, the parties agree as
follows:
Section 1. Definitions.
(a) "affiliate" means, with respect to any person, another person that
directly or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with such person.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "governing instruments" means the articles or certificate of
incorporation or other charter, as the case may be, and bylaws of the
Company and its subsidiaries.
(d) "mortgage loans" means construction, mixed use, land acquisition and
development loans primarily secured by mortgages or deeds of trust on
real estate properties.
(e) "Net Value" of the Company has the same meaning and is determined in
the same manner as it is in the Company's public statements and
disclosures.
(f) "unaffiliated directors" shall mean those members of the Board of
Directors of the Company, who are not officers, directors or
affiliates of the Manager.
(g) Net Realizable Value ("NRV") will be equal to the estimated net
realizable value of the Company's assets per common share, as
established by the Board of Directors and reported in the Company's
quarterly report on Form 10-Q as filed with the Securities and
Exchange Commission.
Section 2. General Duties of the Manager.
(a) Administrative Services Provided by the Manager. The Manager will be
responsible for the day-to-day operations of the Company and shall
perform such services and activities relating to the assets and
operations of the Company as may be appropriate, including:
(1) in accordance with the directions and subject to the supervision
of the Company's Board of Directors, investing or reinvesting any
money of the Company;
(2) furnishing reports and statistical and economic research to the
Company regarding the Company's real estate investment activities
and the performance of its portfolio of mortgage loans;
(3) administering the day-to-day operations of the Company and
performing administrative functions necessary in the management
of the Company, including the collection of revenues, the payment
of the Company's expenses, debts and obligations and the
maintenance of appropriate computer services to perform such
administrative functions;
(4) counseling the Company's officers and Board of Directors in
connection with policy decisions to be made by the Board of
Directors;
(5) overseeing the servicing of the Company's construction related
activities pertaining to its mortgage loans and other
investments;
(6) providing all actions necessary for compliance by the Company
with all federal, state and local regulatory requirements
applicable to the Company in respect of its business activities,
including maintaining books and records, maintaining current
shareholder records, and preparing or causing to be prepared all
periodic reports and all financial statements required under
applicable regulations and contractual undertakings;
(7) providing all actions necessary to enable the Company to make
required federal, state and local tax filings and reports and
generally enable the Company to maintain its status as a
corporation, including, but not limited to, soliciting
stockholders for required information to the extent required by
the provisions of the Code;
(8) communicating on behalf and with the direction of the Company
(with content approved in advance by the Company's Board of
Directors) with the stockholders of the Company as required to
satisfy any reporting requirements and to maintain effective
relations with such stockholders;
(9) performing such other services as may be required from time to
time for management and other activities relating to the assets
of the Company as the Board of Directors shall reasonably request
or the Manager shall deem appropriate under the particular
circumstances; and
(10) Acting as the Company's transfer agent and registrar for all
Company initiated stock transactions.
(b) Administrative Services Provided by Subcontractors. The Manager may
enter into subcontracts with other parties to provide any such
services to the Company, so long as it exercises reasonable care in
the selection of such subcontractors.
(c) Compliance with Public Disclosure Rules. Manager agrees to comply and,
in performing its services as Manager, to cause the Company to comply
with all disclosure rules applicable to the Company, including the
statutes, rules and regulations governing publicly held entities under
the Securities Exchange Act of 1934 as now in effect and as it may be
amended from time to time.
(d) Cooperation of the Company. The Company agrees to take all action
reasonably required to permit the Manager to carry out its duties and
obligations. The Company further agrees to make available all
materials reasonably required to enable the Manager to satisfy its
obligations to deliver financial statements and any other information
or reports with respect to the Company.
Section 3. Additional Activities of Manager.
(a) Except as expressly provided in paragraph 3(b) below, nothing in this
agreement shall prevent the Manager or any of its officers, directors,
employees or affiliates from engaging in other businesses or from
rendering services of any kind to any other person or entity,
including the purchase of, or advisory services to others investing
in, any type of real estate investment, including investments which
meet the principal investment objectives of the Company.
Notwithstanding the foregoing, the Manager shall at all times during
the term of this Agreement devote such time and attention, and
maintain sufficient personnel and resources, to assure that it can
adequately manage the operations and administration of the Company.
(b) Manager agrees that certain proposed transactions, as defined below,
will be considered "Company Opportunities," and any Company
Opportunity that comes to the Manager's attention will first be
offered or made available to the Company as provided herein before
Manager or any of Manager's affiliates may enter into any such
transaction for its or their own account or may offer such transaction
to any third party. "Company Opportunities" will include any proposed
investment or investment disposition transaction brought to the
Manager's attention in its capacity as Manager under this Agreement,
including transactions brought to its attention by members of the
Company's Board of Directors, by any other party to a then existing
non-Cupertino sourced Company investment, or by any party contacting
the Manager concerning such a proposed transaction in its capacity as
Manager of the Company. Manager shall initially pursue any such
Company Opportunity on behalf of the Company, and will provide the
Board of Directors promptly in writing with notice of the material
proposed terms of any such transaction, to the extent practicable. The
Board of Directors will meet within thirty (30) days following the
date such notice is received by the Board to consider whether the
Company will elect to pursue the Company Opportunity described in the
notice. If the Board elects to have the Company pursue the Company
Opportunity, it will so notify the Manager and direct the Manager's
efforts in seeking to complete the transaction. The Manager will
thereafter diligently and in good faith analyze the proposed
transaction on the Company's behalf, negotiate the terms of the
transaction solely in the Company's interest, communicate with the
Board concerning the ongoing status of the transaction, and seek to
consummate any such transaction on behalf of the Company. If the
Company either notifies the Manager that it will not seek to pursue
the Company Opportunity described in the notice, or fails to notify
the Manager of its intention by the end of a thirty day period
following the Board's receipt of such notice, the Manager may pursue
such transaction for its own account or offer the transaction to a
third party in its discretion.
Section 4. Bank Accounts.
At the direction of the Board of Directors, the Manager will establish and
maintain one or more bank accounts in the name of the Company or any subsidiary
of the Company, and will collect and deposit into any such account or accounts
any and all funds received on behalf of the Company, and will disburse funds
from any such account or accounts, under such terms and conditions as the Board
of Directors may approve. All such accounts and funds held in such accounts
shall be segregated from the Manager's own accounts and those of any other third
party, shall not be commingled with the funds of any third party, and the
Manager shall at all times assure that the Company holds clear title to such
accounts subject only the claims of the Company's creditors. The Manager shall
render appropriate accountings of such accounts, collections and payments to the
Company's officers and Board of Directors and, upon request, to the auditors of
the Company or any subsidiary of the Company.
Section 5. Records
The Manager shall maintain appropriate books of account and records
relating to the Company's operations and the services performed under this
Agreement, and such books of account and records shall be accessible for
inspection by representatives of the Company or any subsidiary of the Company at
any time during normal business hours.
Section 6. Compensation of the Manager.
(a) The manager shall receive a one-time start-up fee of $75,725 to be
paid by October 15, 2008.
(b) The Manager shall receive a quarterly management fee for investments
not sourced by Cupertino Capital equal to 0.25% of the Net Realizable
Value ("NRV") of the Company attributable to those investments not
sourced by Cupertino Capital, payable as of the end of the quarter and
calculated based on the NRV as published in the quarterly report for
the preceding calendar quarter, except for Q4 of 2008 such fee
percentage shall be 0.1875%.
(c) The Manager shall also receive a quarterly management fee for
Cupertino Capital sourced investments equal to 0.125% of the Net
Realizable Value ("NRV") of the Company attributable to those
investments sourced by Cupertino Capital, payable at the end of the
quarter and calculated based on the NRV as published in the quarterly
report for the preceding calendar quarter, except for Q4 of 2008 such
fee percentage shall be 0.09375%.
(d) Payment. The Manager shall calculate the precise figures of the
Compensation Schedule in order to determine the Manager's Fee within
15 days after the end of each calendar quarter. This calculation shall
be completed promptly and delivered to the Board of Directors along
with a summary of all material transactions, a cash flow analysis of
income and expenses, and reconciliation of bank accounts as overseen
by manager on behalf of the Company for approval and payment of
management fee. Attached to this agreement is the "Cupertino Capital
Compensation Schedule" exhibit which illustrates the calculation of
the management fees.
Section 7. Expenses of the Company.
(a) Expenses Borne by the Manager. Without regard to the compensation
received by the Manager, the Manager shall bear any and all expenses
internal to the operations of the Manager or incurred in connection
with the Manager's performance of the services to be provided under
this Agreement, including, but not limited to, the following expenses:
(1) Employment expenses of the personnel employed by the Manager,
including, but not limited to, salaries, wages, payroll taxes,
and the cost of employee benefit plans;
(2) Rent, telephone, utilities, office furniture, equipment and
machinery (including computers, to the extent utilized) and other
office expenses (such as asset/liability software, modeling
software and other software and hardware) of the Manager needed
in order to perform its duties as set forth herein;
(3) Bookkeeping fees and expenses including any costs of computer
services;
(4) Miscellaneous administrative expenses incurred in supervising and
monitoring the Company's investments or any subsidiary's
investments or relating to performance by the Manager of its
functions;
(5) Expenses connected with the acquisition of the Company's assets
and mortgage loans;
(6) Travel and related expenses of personnel of the Manager when
attending meetings or performing other business activities which
relate to the Company or any subsidiary of the Company.
(b) Expenses Borne by the Company. The Company or any subsidiary of the
Company shall pay all of its expenses except those which are the
specific responsibility of the Manager pursuant to this agreement;
and, without limiting the generality of the foregoing, it is
specifically agreed that the following expenses of the Company or any
subsidiary of the Company shall not be paid by the Manager. Further,
it is understood that none of the expenses listed below will include
any expenses internal to the operations of the Manager or related in
any way to the Manager's performance of the services detailed in this
Management Agreement:
(1) The Fund's cost of borrowed money;
(2) All taxes applicable to the Company or any subsidiary of the
Company including interest and penalties;
(3) Legal, accounting and auditing fees and expenses relating to the
Company and/or any subsidiary;
(4) Expenses connected with the ownership and disposition of the
Company's or any subsidiary's assets, including, but not limited
to, costs of completion, foreclosure, maintenance, repair and
improvement of property and premiums for insurance on property
owned by the Company or any subsidiary of the Company;
(5) Legal, audit, accounting, underwriting, brokerage, listing,
rating agency, registration and other fees, printing, engraving
and other expenses and taxes incurred in connection with the
issuance, distribution, transfer, registration and stock exchange
listing of the Company's or any subsidiary's equity securities or
debt securities;
(6) The expenses of organizing, modifying or dissolving the Company
or any subsidiary of the Company;
(7) All insurance costs incurred in connection with the Company or
any subsidiary of the Company;
(8) Expenses connected with payments of dividends or interest or
distributions in any other form made or caused to be made by the
Board of Directors to holders of the securities of the Company or
any subsidiary of the Company;
(9) Expenses connected with the structuring and issuance of mortgage
securities by the Company or any subsidiary of the Company,
including but not limited to trustee's fees, insurance premiums,
and costs of required credit enhancements;
(10) Travel and related expenses of the directors of the Company when
attending meetings or performing other business activities which
relate to the Company;
(11) All expenses of third parties connected with communications to
holders of equity securities or debt securities of the Company or
any subsidiary of the Company and the other bookkeeping and
clerical work necessary in maintaining relations with holders of
such securities and in complying with the continuous reporting
and other requirements of governmental bodies or agencies,
including any costs of computer services in connection with this
function, the cost of printing and mailing certificates for such
securities and proxy solicitation materials and reports to
holders of the Company's or any subsidiary's securities and
reports to third parties required under any indenture to which
the Company or any subsidiary of the Company is a party;
(12) Fees and expenses paid to trustees or directors of the Company or
any subsidiary of the Company, the cost of director and officer
liability insurance and premiums for fidelity and errors and
omissions insurance;
(13) Any judgment rendered against the Company or any subsidiary of
the Company, or against any trustee or director of the Company or
any subsidiary of the Company in his capacity as such for which
the Company or any subsidiary of the Company is required to
indemnify such trustee or director, or any court or governmental
agency; and
(14) Other miscellaneous expenses of the Company or any subsidiary of
the Company which are not specified expenses of the Manager under
this agreement.
Section 8. Limits of Manager Responsibility; Indemnification.
The Manager assumes no responsibility under this agreement other than to
render the services called for in good faith and shall not be responsible for
any action of the Board of Directors in following or declining to follow any
advice or recommendations of the Manager. The Manager, its directors, officers,
stockholders and employees will not be liable to the Company, any subsidiary of
the Company, its subsidiary's stockholders or the unaffiliated directors for any
acts or omissions by the Manager, its directors, officers, stockholders or
employees under or in connection with this agreement, except by reason of acts
or omissions constituting material breach of this Agreement, bad faith, willful
misconduct, negligence or reckless disregard of their duties under this
agreement. The Company and its subsidiaries shall reimburse, indemnify and hold
harmless the Manager, its directors, officers, stockholders and employees of and
from any and all expenses, losses, damages, liabilities, demands, charges and
claims of any nature whatsoever, including, without limitation, attorneys' fees,
in respect of or arising from any acts or omissions of the Manager, its
stockholders, directors, officers and employees made in good faith in the
performance of the Manager's duties under this agreement and not constituting
material breach of this Agreement, bad faith, willful misconduct, negligence or
reckless disregard of its duties.
Section 9. Term; Termination Fee.
(a) This agreement shall commence on October 1, 2008, and shall continue
in force for an initial period of one year, and thereafter it shall be
renewed automatically for successive one-year periods unless a notice
of non-renewal is delivered by either party prior to a date 90 days
following the end of any such one year initial or renewal period.
(b) In addition to any other liability or obligation of either party to
the other due upon termination of this agreement, if this agreement is
terminated without cause (as "cause" is defined below), the Company
shall pay the Manager a termination fee in an amount equal to the
compensation paid for the quarter immediately preceding the date of
termination pursuant to Section 6(b) and (c) above.
Section 10. Termination by Company for Cause
At the option of the Company, this agreement shall be and become terminated upon
written notice of termination to the Manager if any of the following events
shall occur. Termination for any of these events shall constitute termination
for "cause":
(a) if a majority of the unaffiliated directors determines that the
Manager has violated or is in breach of this agreement in any material
respect and, after notice of such violation, the Manager has failed to
cure such violation within 60 days; or
(b) there is entered an order for relief or similar decree or order with
respect to the Manager by a court having competent jurisdiction in an
involuntary case under the federal bankruptcy laws as now or hereafter
constituted or under any applicable federal or state bankruptcy,
insolvency or other similar laws; or the Manager:
(1) ceases, or admits in writing its inability, to pay its debts as
they become due and payable, or makes a general assignment for
the benefit of, or enters into any composition or arrangement
with, creditors;
(2) applies for, or consents, by admission of material allegations of
a petition or otherwise, to the appointment of a receiver,
trustee, assignee, custodian, liquidator or sequestrator, or
other similar official, of the Manager or of any substantial part
of its properties or assets, or authorizes such an application or
consent, or proceedings seeking such appointment are commenced
without such authorization, consent or application against the
Manager and continue undismissed for 60 days;
(3) authorizes or files a voluntary petition in bankruptcy, or
applies for or consents, by admission of material allegations of
a petition or otherwise, to the application of any bankruptcy,
reorganization, arrangement, readjustment of debt, insolvency,
dissolution, liquidation or other similar law of any
jurisdiction, or authorizes such application or consent, or
proceedings to such end are instituted against the Manager
without such authorization, application or consent and are
approved as properly instituted and remain undismissed for 60
days or result in adjudication of bankruptcy or insolvency; or
Section 11. Action Upon Termination.
From and after the effective date of termination of this agreement, except
as otherwise specified, the Manager shall not be entitled to compensation for
further services, but shall be paid all compensation accruing to the date of
termination. Upon such termination, the Manager shall:
(a) after deducting any accrued compensation and reimbursement for its
expenses to which it is then entitled, pay over to the Company or any
subsidiary of the Company all money collected and held for the account
of the Company or any subsidiary of the Company pursuant to this
agreement;
(b) deliver to the Board of Directors 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 of Directors with respect to the
Company or any subsidiary of the Company; and
(c) deliver to the Board of Directors all property and documents of the
Company or any subsidiary of the Company then in the custody of the
Manager.
Section 12. Release of Money or Other Property Upon Written Request.
Manager agrees that any money or other property of the Company or any
subsidiary of the Company held by the Manager under this agreement shall be held
solely in the name of the Company or such subsidiary by the Manager as custodian
for the Company or such subsidiary, and the Manager's records shall clearly
reflect the ownership of such money or other property by the Company or such
subsidiary. Upon the receipt by the Manager of a written request signed by a
duly authorized officer of the Company requesting the Manager to release to the
Company or any subsidiary of the Company any money or other property then held
by the Manager for the account of the Company or any subsidiary of the Company
under this Agreement, the Manager shall promptly release such money or other
property to the Company or such subsidiary of the Company; provided that such
release will not cause the Manager to violate any law or breach any agreement to
which the Company is a party. The Manager shall not be liable to the Company,
any subsidiaries of the Company, the unaffiliated directors, or the Company's or
its subsidiaries' stockholders for any acts performed or omissions to act by the
Company or any subsidiary of the Company in connection with the money or other
property released to the Company or any subsidiary of the Company and not
constituting a material breach of this Agreement, bad faith, willful misconduct,
negligence or reckless disregard of its duties. The Company and any subsidiary
of the Company shall indemnify the Manager, its directors, officers,
stockholders and employees against any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever, which arise
in connection with the Manager's release of such money or other property to the
Company or any subsidiary of the Company unless such expenses, losses, damages,
liabilities, demands, charges and claims arise in connection with acts or
omissions which constitute material breach of this Agreement, bad faith, willful
misconduct, negligence or reckless disregard of its duties. Indemnification
pursuant to this provision shall be in addition to any right of the Manager to
indemnification under this agreement.
Section 13. Notices
Unless expressly provided otherwise, all notices, requests, demands and
other communications required or permitted under this agreement shall be in
writing and shall be deemed to have been duly given, made and received when (1)
delivered by hand or (2) upon actual receipt of registered or certified mail,
postage prepaid. The parties may deliver to each other notice by electronically
transmitted facsimile or email copies provided that such electronically
transmitted notice is followed within twenty-four hours by a hardcopy notice
delivered and received as specified in (1) or (2) in this paragraph. Any notice
shall be duly addressed to the parties as follows:
(a) If to the Company - Notice both by written hardcopy and email is
required:
Board of Directors
Attn: Xxxxxxx Xxxxxxxxx
X.X. XXX 0000 Xxxxxxxx, XX 00000
Email: xxxxxx@xxxxxxxxx.xxx
With Copy to: Xxxx.Xxxxx@Xxxxx-Xxxxx.xxx, Xxxxxxxxxx@xxx.xxx, and
xxxxxxxxx@xxxxxxxxx.xxx.
(b) If to the Manager:
Cupertino Capital
Attn: Xxx Xxxx
00000 Xxxxxxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxx@xxxxxxxxxx.xxx
Any party may alter the address to which communications or copies are to be
sent by giving notice of such change of address.
Section 14. Assignments
Except as set forth in this section, this agreement shall terminate
automatically in the event of its attempted assignment, in whole or in part, by
the Manager, other than the pledge of amounts payable by the Company to the
Manager to secure the Manager's obligations to its lenders, unless such
assignment is consented to in writing by the Company. Any such consented
assignment shall bind the assignee in the same manner as the Manager is bound.
In addition, the assignee shall execute and deliver to the Company a counterpart
of this agreement naming such assignee as Manager. This agreement shall not be
assigned by the Company without the prior written consent of the Manager, except
in the case of assignment by the Company to a REIT or other organization which
is a successor, by merger, consolidation or purchase of assets, to the Company,
in which case such successor organization shall be bound by this agreement and
by the terms of such assignment in the same manner as the Company is bound.
Section 15. 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. The express terms hereof control and supersede
any course of performance or usage of the trade inconsistent with any of the
terms. This agreement may not be modified or amended other than by an agreement
in writing.
Section 16. Controlling Law
This agreement and all questions relating to its validity, interpretation,
performance and enforcement shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of California.
Section 17. Execution in Counterparts
This agreement may be executed in any number of counterparts.
Section 18. Provisions Separable
The provisions of this agreement are independent of and separable 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.
Section 19. Confidentiality
As Manager of the Company, Manager will be in possession and control of
confidential and proprietary information relating to the Company and its
operations as well as non public personal information relating to its
shareholders. Manager hereby agrees, on its own behalf, and on behalf of its
officers, employees, agents and contractors, to use all commercially reasonable
measures necessary to prevent unauthorized persons from gaining access to,
distributing or otherwise using such confidential or proprietary Company or
shareholder information, including, but not limited to (a) adopting appropriate
procedures to protect the confidentiality of such information, which procedures
are at least as comprehensive and effective as those used to protect Manager's
own confidential or proprietary information, (b) limiting internal access to
such information to those employees of the Manager who have a need to know such
information, and (c) informing its personnel of this confidentiality obligation
and its binding effect on their activities and obtaining appropriate
confidentiality agreements with any contractors, agents or other third parties
used by Manager in performance of services hereunder.
The parties hereto have executed this agreement as of the date first
written above.
a Maryland corporation
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By: Xxxxxxx X. Xxxxxxxxx
Its: Chairman
RMRF Enterprises, Inc., dba Cupertino Capital
a California corporation
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By: Xxxxxx X. Xxxx
Its: President
