AMENDED AND RESTATED
ADVISORY AGREEMENT
between
FRANKLIN SELECT REALTY TRUST
and
FRANKLIN PROPERTIES, INC.
THIS AMENDED AND RESTATED ADVISORY AGREEMENT ("Agreement") is dated as of
January 1, 1997, between FRANKLIN SELECT REALTY TRUST, a California corporation
(the "Company"), and FRANKLIN PROPERTIES, INC., a California corporation (the
"Advisor").
WHEREAS, the Company and the Advisor entered into a certain agreement (the
"Old Agreement") captioned "Advisory Agreement between Franklin Select Real
Estate Income Fund and Franklin Properties, Inc.," dated as of March 1, 1989.
WHEREAS, the Company and the Advisor entered into a certain agreement
captioned "First Amendment to Advisory Agreement between Franklin Select Real
Estate Income Fund and Franklin Properties Inc.," dated as of October 1, 1994,
pursuant to which the Agreement was amended to reflect certain changes in the
compensation paid to the Advisor as approved by the shareholders.
WHEREAS, the Company and the Advisor desire to amend and restate the Old
Agreement so that all of the terms between the Company and the Advisor are set
forth in one agreement, as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants in the Old Agreement and this Agreement, the parties agree as follows:
1. DUTIES OF ADVISOR. The Advisor agrees to use its best efforts to
present to the Company (a) a continuing and suitable investment program
consistent with the investment policies and objectives of the Company and
(b) investment opportunities of a character consistent with the investment
program as the Directors may adopt from time to time. In performance of
this undertaking, subject to the supervision of the Directors and upon
their direction, and consistent with the provisions of the Articles of
Incorporation and Bylaws of the Company, the Advisor shall:
(a) furnish or obtain and supervise the day-to-day operations of
the Company;
(b) serve as the Company's investment and financial advisor and
provide research, economic and statistical data in connection with the
Company's investments and investment and financial policies;
(c) on behalf of the Company, investigate, select and conduct
relationships with consultants, investment banks, lenders, mortgagors,
brokers, investors, shareholders, transfer agents, builders,
developers and others;
(d) consult with the Directors and furnish the Directors with
advice and recommendations with respect to making, acquiring (by
purchase, investment, exchange or otherwise), holding and disposing
(through sale, exchange or otherwise) of investments consistent with
the policies and provisions of the Company;
(e) on behalf of the Company, investigate, select and commit to
purchase (subject to board approval) investments consistent with the
policies and provisions of the Company and in accordance with the
policies and guidelines established by the Directors, provided that
actual investments shall be made only with the prior approval of a
majority of a quorum of the Directors or by written consent of all
Directors;
(f) obtain for the Directors such services as may be required in
acquiring and disposing of investments, disbursing and collecting the
funds of the Company, paying the debts and fulfilling the obligations
of the Company and handling, prosecuting and settling any claims of
the Company;
(g) obtain for the Company such services as may be required for
property management, including property management services rendered
by an affiliate of the Advisor, and other activities relating to the
investment portfolio of the Company;
(h) advise in connection with and conduct negotiations by or on
behalf of the Company with investment banking firms, securities
brokers or dealers and other institutions or investors for public or
private sales of Shares or other securities of the Company, or obtain
loans for the Company, but in no event in such a way that the Advisor
could be deemed to be acting as a broker-dealer or underwriter;
(i) provide, at the Company's expense, office space, office
furnishings, personnel and other overhead items necessary and
incidental to the Company's business and operations;
(j) from time to time or at any time requested by the Directors,
make reports to the Directors of its performance of services under
this Agreement;
(k) obtain appraisal reports, where appropriate, on investments
or contemplated investments of the Company;
(l) provide, at the Company's expense and at the direction of the
Board of Directors, accounting and related services necessary to the
preparation of the Company's financial statements, regulatory filings,
and tax returns; and
(m) do all things necessary to assure its ability to render the
services described in this Agreement.
2. NO PARTNERSHIP OR JOINT VENTURE. The Company and the Advisor are
not partners or joint venturers with each other and nothing in this
Agreement shall be construed to make the parties partners or joint
venturers or impose any liability as a partner or joint venturer on either
of them.
3. RECORDS. At all times, the Advisor shall keep proper books of
account and records relating to services performed under this Agreement,
which shall be accessible for inspection by the Company at any time during
ordinary business hours.
4. REIT QUALIFICATIONS. Notwithstanding anything else in this
Agreement, the Advisor shall refrain from any action (including, without
limitation, performing services for tenants of property or managing or
operating real property) which, in its sole judgment made in good faith or
in the judgment of the Directors of which the Advisor has written notice,
would adversely affect the status of the Company as a real estate
investment trust as defined and limited in the Code, which would violate
any law, rule, regulation or statement of policy of any governmental body
or agency having jurisdiction over the Company or over its securities, or
which would otherwise not be permitted by the Company's Bylaws.
5. BANK ACCOUNTS. The Advisor, at the expense of the Company, may
establish and maintain one or more bank accounts in its own name, and may
collect and deposit into any one or more accounts, and disburse from any
account or accounts, any money on behalf of the Company, on the terms and
conditions as the Directors may approve, provided that no funds shall be
commingled with funds of the Advisor; and the Advisor shall from time to
time give an appropriate accounting of collections and payments to the
Directors and to the auditors of the Company.
6. BOND. The Advisor, if and to the extent that the Directors require,
shall maintain a fidelity bond with a responsible surety company in such
amount as the Directors may require from time to time, covering all
directors, officers, employees and agents of the Advisor handling funds of
the Company and any investment documents or records pertaining to
investments of the Company. The bond shall inure to the benefit of the
Company in respect of losses of any property from acts of the directors,
officers, employees and agents of the Advisor through theft, embezzlement,
fraud, negligence, error or omission or otherwise. The premium for the bond
shall be an expense of the Company.
7. INFORMATION FURNISHED ADVISOR. The Directors shall at all times
keep the Advisor fully informed with regard to the investment policy of the
Company, the capitalization policy of the Company and, generally, their
current intentions as to the future of the Company. In particular, the
Directors shall notify the Advisor promptly of their intention to sell or
otherwise dispose of any of the Company's investments or to make any new
investment. The Company shall furnish the Advisor with a certified copy of
all financial statements, a signed copy of each report prepared by
independent certified public accountants and all other information with
regard to the Company's affairs as the Advisor may reasonably request.
8. CONSULTATION AND ADVICE. In addition to the services described
elsewhere in this Agreement, the Advisor shall consult with the Directors,
and shall, at the request of the Directors or the officers of the Company,
give advice and recommendations with respect to other aspects of the
business and affairs of the Company. In general, the Advisor shall inform
the Directors of any factors, which come to its attention which the Advisor
believes would influence the policies of the Company, except to the extent
that giving that information would involve a breach of fiduciary duty.
9. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings indicated:
(a) "Affiliate" means as to any Person (i) any other Person
directly or indirectly controlling, controlled by or under common
control with such Person, (ii) any other person owning or controlling
10% or more of the outstanding voting securities or beneficial
interest of such Person, (iii) any officer, director, trustee or
general partner of such Person and (iv) if such other Person is an
officer, director, trustee or partner of another entity, then the
entity for which that Person acts in any such capacity.
(b) "Average Invested Assets" means for any period the average of
the aggregate book value of the assets of the Company invested,
directly or indirectly, in equity interests in 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.
(c) "Fiscal Year" means any period for which an income tax return
is submitted to the Internal Revenue Service and which is treated by
the Internal Revenue Service as a reporting period for the Company.
(d) "Mortgage Investment" means the assets of the Company
invested in any mortgage loans, mortgage-backed securities, notes,
bonds or other evidences of indebtedness or obligations which are
secured or collateralized by interests in real estate.
(e) "Net Income" means the total revenues of the Company for any
period, computed on the basis of its results of operations for that
period, after deduction of all expenses, excluding, however, any
additions to reserves for depreciation or bad debts or other similar
non-cash reserves.
(f) "Person" means an individual, corporation, partnership, joint
venture, association, company, trust, bank or other entity, or
government and any agency and political subdivision of a government.
(g) "Real Estate Assets" means for any calendar quarter, the
aggregate book value of the assets of the Company on the last day of
the quarter, invested directly or indirectly in interests in real
estate, before reserves for depreciation, bad debts, or other similar
non-cash reserves, as set forth in the Company's financial statements
(which may be unaudited except as elsewhere provided in this
Agreement), prepared quarterly on an accrual basis in accordance with
generally accepted accounting principles. Real Estate Assets do not
include Mortgage Investments.
10. ADVISOR COMPENSATION. At the end of each calendar quarter or such
other interval as the parties shall agree, the Company shall pay to the
Advisor as compensation for the advisory services rendered to the Company
hereunder an annualized fee equal to the sum of (a) one-half of one percent
(.5%) of the Real Estate Assets up to and including $200,000,000 and (b)
four-tenths of one percent (.4%) of the Real Estate Assets, if any, in
excess of $200,000,000.
11. STATEMENTS. The Advisor shall furnish to the Company at least
quarterly, beginning with the second calendar quarter of the term of this
Agreement, a statement showing the computation of the fee payable in
respect of the preceding calendar quarter under Section 10, even after the
termination of this Agreement. The final settlement of any fees for each
Fiscal Year shall be subject to adjustment in accordance with, and upon
completion of, the annual audit of the Company's financial statement; any
payment by the Company or repayment by the Advisor indicated as a result of
the audit shall be made promptly after the completion of the audit and
shall be reflected in the audited statements to be published by the
Company.
12. COMPENSATION FOR ADDITIONAL SERVICES.
(a) Where appropriate in the sole judgment of the Directors or
the Advisor, an Affiliate of the Advisor may be retained to perform
property management services for the Company.
(b) If and to the extent that the Company shall request the
Advisor, or any director, officer, partner or employee of the Advisor,
to perform services for the Company other than those required under
this Agreement, the additional services, if performed, will be
compensated separately on terms to be agreed between that party and
the Company.
13. EXPENSES OF THE ADVISOR. Without regard to the amount of
compensation received under this Agreement by the Advisor, the Advisor
shall bear the following expenses:
(a) employment expenses of the officers and directors of the
Advisor;
(b) telephone, utilities, office furniture and furnishings and
other office expenses of the Advisor; and
(c) miscellaneous administrative and other expenses of the
Advisor not relating to the performance by the Advisor of its
functions hereunder.
14. EXPENSES OF THE COMPANY. Except as expressly otherwise provided in
this Agreement, the Company shall pay all its expenses not expressly
assumed by the Advisor, and without limiting the generality of the
foregoing it is specifically agreed that the following expenses of the
Company shall be paid by the Company and shall not be paid by the Advisor:
(a) the cost of money borrowed by the Company;
(b) taxes on income and taxes and assessments on real property
and all other taxes applicable to the Company;
(c) real estate brokerage and sales commissions with respect to
the purchase or sale of real estate assets of the Company payable to
real estate brokers who cooperate with the Advisor in such
transactions, and brokerage and sales commissions with respect to the
purchase or sale of Mortgage Investments payable to mortgage brokers
who cooperate with the Advisor in such transactions;
(d) legal, accounting, underwriting commissions and fees and any
other fees and costs, including due diligence, qualification of
securities for sale in various states, listing of securities on a
securities exchange, printing, engraving and other expenses and taxes
incurred in connection with the issuance, distribution, transfer,
registration, marketing and listing of the Company's securities,
including compensation of employees of the Advisor and direct expenses
of officers and employees of the Advisor and affiliates while directly
engaged in such activities on behalf of the Company;
(e) fees, salaries and other employment costs, taxes and expenses
paid to Directors, officers and employees of the Company, including
persons who may be employees of the Advisor, other than officers of
the Advisor, or of any company which controls, is controlled by or is
under common control with the Advisor, incurred with respect to and
allocable to the prudent operation and business of the Company, other
than as provided under Section 13(a) above.
(f) fees and expenses paid to independent contractors,
appraisers, consultants, managers and other agents retained by or on
behalf of the Company and expenses (including expenses for Persons who
may also be officers or employees of the Advisor) connected with the
acquisition, financing, refinancing, disposition and ownership of real
estate interests or other property, including insurance premiums,
legal services, brokerage and sales commissions, maintenance, repair
and improvement of property;
(g) expenses of maintaining and managing real estate interests;
(h) insurance as required by the Directors (including Directors'
liability insurance);
(i) the expenses of organizing, revising, amending, converting,
modifying or terminating the Company;
(j) expenses connected with payments of dividends or interest or
distributions in cash or any other form made or caused to be made by
the Directors to holders of securities of the Company;
(k) all expenses connected with communications to holders of
securities of the Company and the other bookkeeping and clerical work
necessary in maintaining relations with holders of securities,
including the cost of printing and mailing certificates for
securities, proxy solicitation materials and reports to holders of the
Company's securities;
(1) the cost of any accounting, statistical or bookkeeping
equipment necessary for the maintenance of the books and records of
the Company;
(m) transfer agent's, registrar's, dividend disbursing agent's,
dividend reinvestment plan agent's and indenture trustee's fees and
charges;
(n) legal, accounting and auditing fees and expenses not included
in (d) and (f) of this Section 14; and
(o) other ordinary and necessary expenses of the business and
affairs of the Company, other than those allocable to the Advisor
under Section 13 above.
The Company shall reimburse the Advisor or its affiliates for the cost
of rent, goods or materials furnished or advanced by them for the benefit
of the Company, and for services rendered for the benefit of the Company.
The Company's costs for services and goods provided by the Advisor to the
Company shall be based upon the cost to the Advisor and an allocable
portion of the actual compensation (including employment taxes and
benefits) of Persons involved plus an appropriate share of overhead
allocable to each Person who rendered services for the benefit of and on
the business affairs of the Company. The amounts charged to the Company by
the Advisor and its Affiliates shall not exceed those which the Company
would be required to pay to independent parties for comparable rent,
materials, goods or services.
15. REFUND BY ADVISOR. In addition to the provisions of Section 10
hereof, within 60 days after the end of any calendar year which begins
following the date the Company first commences operations after reaching
its minimum capital subscription amount, the Advisor will refund to the
Company the amount, if any, by which the Operating Expenses (as defined in
this Section 15) of the Company during such Calendar Year exceeded the
greater of (a) 2% of the Average Invested Assets or (b) 25% of Net Income
unless the Independent Directors of the Company shall have affirmatively
determined that due to unusual and non-recurring factors, such higher level
of Operating Expenses is justified for such year. For the purposes of this
Section 15, "Operating Expenses" during the Calendar Year means the
aggregate annual expenses of every character regarded as Operating Expenses
in accordance with generally accepted accounting principles, as determined
by independent accountants selected by the Directors, including regular
compensation payable to the Advisor, excluding, however, the following: (i)
the cost of money borrowed by the Company; (ii) taxes on income and taxes
and assessments on real property and all other taxes applicable to the
Company; (iii) expenses of acquiring, financing, refinancing, disposing of,
maintaining, managing and owning real estate equity interests or other
property (including the costs of legal services, brokerage and sales
commissions, maintenance, repair and improvement of property); (iv)
insurance as required by the Directors (including any Directors' liability
insurance); (v) expenses of organizing, revising, amending, converting, or
terminating the Company; (vi) expenses connected with payments of dividends
or interest or distributions in cash or any other form made or caused to be
made by the Directors to holders of securities of the Company; (vii) all
expenses connected with communications to holders of securities of the
Company and the other bookkeeping and clerical work necessary in
maintaining relations with holders of securities of the Company, including
the cost of printing and mailing certificates for securities and proxy
solicitation materials and reports to holders of securities of the Company;
(viii) transfer agent's, registrar's, dividend disbursing agent's, warrant
agent's, dividend reinvestment plan agent's and indenture trustee's fees
and charges, (ix) other legal, accounting and auditing fees and expenses;
and (x) non-cash expenditures (including depreciation, amortization and bad
debt reserve).
16. OTHER ACTIVITIES. Nothing in this Agreement shall prevent the
Advisor or any of its officers, directors or employees or any of its
affiliates from engaging in other business activities related to real
estate investments, from making investments permitted to the Company by the
Company's Bylaws or from acting as advisor to any other person or entity
even though having investment policies similar to the Company (including
another real estate investment trust). The Advisor and its officers,
directors or employees and any of its Affiliates shall be free from any
obligation to present to the Company any particular investment opportunity
which comes to the Advisor or such persons, regardless of whether such
opportunity is within the Company's investment policies, provided, that the
Advisor will give due consideration to the investment objectives and
financial capabilities of the Company in determining whether to present an
investment opportunity to the Company or to another entity for which the
Advisor provides similar services.
17. TERM: TERMINATION OF AGREEMENT. This Agreement shall continue in
force through December 31, 1997, and thereafter it may be renewed annually,
subject to the approval thereof by a majority of the Independent Directors.
Notice of renewal shall be given in writing by the Directors to the Advisor
not less than 60 days before the expiration of this Agreement or of any
extension of this Agreement. Notwithstanding any other provision to the
contrary, this Agreement may be terminated for any reason upon 60 days'
written notice by the Company to the Advisor or 120 days' written notice by
the Advisor to the Company, in the former case by the action of the
Directors, the Independent Directors or a majority of the shareholders of
the Company.
18. AMENDMENTS. 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, or their respective successors or assigns,
or otherwise as provided in this Agreement.
19. ASSIGNMENT. This Agreement shall not be assignable by the Advisor
without the consent of the Company, except an assignment to an Affiliate of
the Advisor, or to a corporation, association, trust or other successor
organization which may take over the property and carry on the affairs of
the Advisor. A proper assignment or any other assignment of this Agreement
by the Advisor shall bind the assignee under this Agreement and by the
terms of the assignment in the same manner as the Advisor is bound. This
Agreement shall not be assignable by the Company without the consent of the
Advisor, except in the case of assignment by the Company to a corporation,
association, trust or other organization which is a successor to the
Company. The successor shall be bound under this Agreement and by the terms
of said assignment in the same manner as the Company is bound.
20. DEFAULT, BANKRUPTCY, ETC. At the option solely of the Directors,
this Agreement shall be and become terminated immediately upon written
notice of termination from the Directors to the Advisor if any of the
following events shall occur:
(a) If the Advisor shall violate any provision of this Agreement,
and after notice of the violation shall not have cured the default
within thirty (30) days or begun action within thirty (30) days to
cure the default which shall be completed with reasonable diligence;
or
(b) If the Advisor shall be adjudged bankrupt or insolvent by a
court of competent jurisdiction, or an order shall be made by a court
of competent jurisdiction for the appointment of a receiver,
liquidator or trustee of the Advisor or of all or substantially all of
its property by reason of the foregoing, or approving any petition
filed against the Advisor for its reorganization, and the adjudication
or order shall remain in force or unstayed for a period of thirty (30)
days; or
(c) If the Advisor shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
federal bankruptcy laws, or for relief under any law for the relief of
debtors, or shall consent to the appointment of a receiver for itself
or for all or substantially all its property, or shall make a general
assignment for the benefit of its creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
The Advisor agrees that if any of the events specified in
subsections (b) and (c) of this Section 20 shall occur, it will give
written notice of the event to the Directors within seven (7) days
after the occurrence of the event.
21. ACTION UPON TERMINATION. From and after the effective date of
termination of this Agreement, pursuant to Sections 17, 19 or 20 herein,
the Advisor shall not be entitled to compensation for further services
performed after the date of termination, but shall be paid all compensation
accruing to the date of termination, including compensation which may have
been earned but deferred.
The Advisor shall promptly upon termination:
(a) pay over to the Company all moneys 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;
(b) deliver to the Directors a full accounting, including a
statement showing all payments collected by it and a statement of all
moneys held by it, covering the period following the date of the last
accounting furnished to the Directors;
(c) deliver to the Directors all property and documents of the
Company then in the custody of the Advisor except for copies of
documents, which the Advisor may keep; and
(d) cooperate with the Directors to provide an orderly management
transition.
22. CHANGE OF NAME. Upon termination of this Agreement by either
party, the Directors shall forthwith cause the name of the Company to be
changed to a name not containing the name "Franklin" or any approximations
or abbreviations of that name and sufficiently dissimilar to that name as
to be unlikely to cause confusion with that name.
23. INDEMNIFICATION. The Advisor, its officers, directors,
shareholders, employees, agents, subsidiaries and assigns shall be
indemnified by the Company against any liability to the Company or its
shareholders resulting from errors in judgment or other acts or omissions,
whether or not disclosed, unless a court of competent jurisdiction
determines that the liabilities or losses resulted from fraud, negligence,
misconduct or other breach of fiduciary duty by that Person.
24. MISCELLANEOUS. The Advisor assumes no responsibility under this
Agreement other than to perform the services called for in good faith, and
shall not be responsible for any action of the Directors in following or
declining to follow any advice or recommendations of the Advisor. Neither
the Advisor nor its shareholders, directors, officers or employees shall be
liable to the Company, the Directors, the holders of securities of the
Company or to any successor or assigns of the Company except by reason of
acts constituting the negligent performance of their duties.
25. 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 accepted by
the party to whom it is given, and shall be given by being delivered at the
following addresses:
The Directors and/or the Company:
Franklin Select Realty Trust
777 Mariners Island Boulevard
San Mateo, California 94403-7777
The Advisor:
Franklin Properties, Inc.
777 Mariners Island Boulevard
San Mateo, California 94403-7777
Either party may at any time give notice in writing to the other party of a
change of its address for the purpose of this Section 25.
26. HEADINGS. The section headings have been inserted for convenience
of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
27. GOVERNING LAW. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of California as
they apply to agreements solely among California residents to be executed
and performed entirely in California.
28. EXECUTION. This instrument is executed and made on behalf of the
Company by an officer who is a Director of the Company, not individually
but solely as an officer pursuant to the Company's Bylaws and the
obligations under this Agreement are not binding upon, nor shall resort be
had to the private property of, any of the Directors, shareholders,
officers, employees or agents of the Company personally, but bind only the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY:
FRANKLIN SELECT REALTY TRUST
By __________________________
President
ADVISOR:
FRANKLIN PROPERTIES, INC.
By __________________________
President